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COMMONWEALTH PENNSYLVANIA v. JOE E. BAILEY (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 5, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOE E. BAILEY, APPELLANT

No. 2042 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Monroe County, at No. 241 of 1980.

COUNSEL

David A. Martino, Bangor, for appellant.

James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Cavanaugh, JJ.

Author: Cercone

[ 295 Pa. Super. Page 121]

This is an appeal from the Judgment of Sentence imposed on August 5, 1980. Appellant was found guilty of the summary offense of Immediate Notice of Accident*fn1 by the District Justice. He appealed the conviction to the Court of Common Pleas of Monroe County. On August 5, 1980, a trial de novo was held. At the end of the trial, the trial judge found appellant guilty of the summary offense and fined him twenty-five dollars plus costs. Appellant then filed his appeal.

Although it appears that the sufficiency claim presented raised by appellant is possibly meritorious, the record indicates that appellant did not file post-verdict motions in compliance with Pa.R.Crim.P. 1123. See Commonwealth v. Koch, 288 Pa. Superior Ct. 290, 431 A.2d 1052 (1981). Moreover, the record reveals that the trial court failed to comply with the requirements of Rule 1123(c) that a defendant be advised, after verdict, of his right to file post-verdict motions and of the consequences should he fail to do so. Instantly, the lower court merely found appellant guilty and entered judgment of sentence on the docket. Under these circumstances we conclude that appellant did not knowingly and intelligently waive his right to file post-verdict motions, and furthermore, that the appeal is premature at this point in time. Accordingly, we remand this case to the court below to allow appellant to file those motions nunc pro tunc. Commonwealth v. Getson, 291 Pa. Super. 632, 436 A.2d 679 (1981); Commonwealth v. Williams, 290 Pa. Super. 158, 434 A.2d 179 (1981); Commonwealth v. Koch, supra.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.


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