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COMMONWEALTH PENNSYLVANIA v. DAVID W. GATES (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 5, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID W. GATES, APPELLANT

No. 156 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County, at No. 104 SCA.

COUNSEL

Samuel K. Gates, York, for appellant.

Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.

Robert C. Bell, Assistant Attorney General, Harrisburg, for Pennsylvania Dept. of Transp., appellee.

Price, Johnson and Shertz, JJ. Shertz, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 295 Pa. Super. Page 214]

On August 6, 1980, appellant, David Gates, was convicted of driving without a valid Pennsylvania driver's license.*fn1 He appealed directly to this court, contending that provision 1501 of the Motor Vehicle Code was unconstitutional and that the evidence was not sufficient to support the conviction. For the following reasons we vacate the judgment of sentence and remand to permit the filing of post verdict motions nunc pro tunc.

At approximately 2:45 p. m. on April 6, 1980, appellant was driving a Ford coupe in North Codorus Township, York County. Officer Henry Doll observed appellant commit a moving traffic violation and stopped his vehicle. The automobile's registration card listed appellant's name and a York County address. Appellant's driver's license was a Florida license, which listed a Florida address as appellant's residence. When asked about the discrepancy appellant responded that he had resided in Pennsylvania for several months, but that he did not have a Pennsylvania driver's license. Appellant was charged with driving without a valid Pennsylvania driver's license. Following a trial on August 6, 1980, appellant was found guilty and sentenced to a fine of $200 and to pay the costs of prosecution.

A defendant has ten days after a conviction of guilty in which to file post verdict motions. Pa.R.Crim.P. 1123. Any issue not raised by post verdict motion is deemed waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). In Commonwealth v. Koch, 288 Pa. Superior Ct. 290, 431 A.2d 1052 (1981), we held that the rule requiring post verdict motions is applicable to summary convictions. Appellant's appeal, therefore, generally would be barred by his failure to file post verdict motions. The record establishes, however, that the trial judge failed to inform appellant (1) of his right to file post verdict motions; (2) the time within which he could file such motions; and (3) the consequences of his failure to file post verdict motions. Thus, since the

[ 295 Pa. Super. Page 215]

    trial court failed to inform appellant of his right to file post verdict motions, and because appellant filed his appeal prior to our holding in Koch, we remand for the filing of post verdict motions.*fn2

The judgment of sentence is vacated and the case remanded for the filing of post verdict motions nunc pro tunc.


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