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COMMONWEALTH PENNSYLVANIA v. EDWARD A. CANADY (03/26/82)

filed: March 26, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD A. CANADY, APPELLANT



No. 704 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County at Bill Nos. 1091, 1093, 1095 and 1096 October Term, 1978.

COUNSEL

J. Hugh O'Donnell, Philadelphia, for appellant.

Ann Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, McEwen and Popovich, JJ. McEwen, J., concurs in the result.

Author: Popovich

[ 297 Pa. Super. Page 294]

Appellant, Edward Canady, was convicted after a trial by a judge, sitting without a jury, of robbery, burglary, possession of an instrument of crime, simple and aggravated assault, and criminal conspiracy. Post-verdict motions were granted in part since judgment was arrested on the burglary conviction. Appellant was sentenced to a term of imprisonment of not less than five nor more than ten years on the robbery conviction.*fn1 Terms of two years probation were imposed on the weapons offenses and on the unlawful restraint conviction. These terms were to run concurrent with each other but consecutive to the robbery conviction. This appeal followed.

Appellant raises only one issue before this Court. He contends that the trial court abused its discretion when it ordered him to proceed to trial represented by a court-appointed attorney with whom appellant was dissatisfied. We cannot address the merits of appellant's claim because it has been waived.

[ 297 Pa. Super. Page 295]

First of all, the fact that the question of waiver has not been raised by the prosecution does not foreclose this Court from raising the issue sua sponte. See Commonwealth v. Klaric, 263 Pa. Super. 286, 397 A.2d 1212 (1979).

In the instant case, the issue of whether the trial court should have granted appellant another opportunity to obtain another attorney was not raised in the written post-verdict motions filed by counsel. However, the trial court permitted appellant's counsel to amend the motions orally. See the Trial Court's Opinion at 2 ("at oral argument on post trial motions [appellant] orally amended the motions to allege error in permitting [appellant's] counsel to withdraw and the appointment of new counsel . . . ."). The trial court then addressed the merits of the issue in its opinion.

With respect to whether the scenario below was sufficient to preserve the issue, we have said that:

"a post-verdict court's erroneous consideration of orally presented allegations of error will not suffice to preserve the allegations for appellate review. E.g., Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d 1032 (1979); Commonwealth v. Hagans, 483 Pa. 415, 397 A.2d 412 (1979); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978)." ...


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