No. 1211 Pittsburgh, 1980, Appeal from the Judgment of Sentence of Nov. 18, 1980, in the Court of Common Pleas of Allegheny County, Criminal Section at CCNO. 7707550/7707610.
Paul R. Gettleman, Pittsburgh, for appellant.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, Johnson and Hoffman, JJ. Johnson, J., files a concurring statement.
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This is an appeal from a judgment of sentence to life imprisonment for second degree murder. The murder was committed in the course of a robbery. Over appellant's objection, the lower court excluded the public from the court room during the selection of the jury. Appellant argues that the lower court thereby denied him his Constitutional
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right to a public trial.*fn1 We agree. The judgment of sentence will therefore be vacated and the case remanded for a new trial.
Before we may consider appellant's argument on its merits, we must dispose of a procedural issue.
The lower court has not filed an opinion explaining why it excluded the public from the court room during the selection of the jury, or, indeed, responding to any of the issues that appellant has raised. Instead the lower court has filed only a pre-printed form. The form is entitled "Opinion" and contains blank spaces in which certain information has been typed in, to the effect that appellant was found guilty on December 7, 1978, of second degree murder, robbery, and criminal conspiracy; that on November 18, 1980, he was sentenced to life imprisonment; and that on November 20, 1980, he filed a direct appeal to this court. The form then concludes as follows:
On November 21, 1980, we did, pursuant to Pennsylvania Rules of Appellate Procedure 1925(b), direct the appellant to file of record and serve upon this Court a brief and concise statement of the matters complained of on appeal by December 5, 1980. To the present time, we have yet to receive same and are uncertain as to the basis of the appeal. We have made an independent examination of the record but are unable to assume or presume the nature of appellant's objections and are, therefore, unable to discuss them.
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(b) Direction to file statement of matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.
Pa.R.A.P. 1925(b) (emphasis added).
The procedural issue we must decide, therefore, is whether we should exercise the discretion given us by Rule 1925(b) to hold that by his failure to file a statement of matters complained of by the date set by the lower court, appellant has waived the arguments he now makes to us. See Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982) ("waiver provision of Rule 1925(b) is clearly discretionary" and "is properly invoked only where failure to file a statement or omission from a statement of issues raised on appeal defeats effective appellate review."); Commonwealth v. Crowley, 259 Pa. Super. 204, 393 A.2d 789 (1978).
The discretion given us by Rule 1925(b) is to be exercised with great care. For if we say that an objection has been waived because of a failure to comply with the rule, that may be equivalent to dismissing the appeal. Here, that would be so.
In deciding whether to hold an objection waived, we must examine the failure to comply with Rule 1925 in the context of the entire case. We must therefore always ask how serious was the failure. The inquiry is equitable in nature, and is similar to that undertaken in other cases involving an exercise of discretion. One consideration must be balanced against another. See, e.g., Provident Credit Corp. v. Young, 300 Pa. Super. 117, 446 A.2d 257 (1982) (en banc) (collecting cases); Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa. Super. 115, 419 A.2d 688 (1980); Toplovich v. Spitman, 239 Pa. Super. 327, 361 A.2d 425
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(1976). The less consequential the objection in question, and the more egregious the failure to comply with Rule 1925, the more likely are we to hold the objection waived; the more consequential the objection, and the slighter the failure, the less likely. Here, the case is very grave: second degree murder, with life imprisonment; the objection in question raises an issue of central importance, not simply for this case but for the trial of criminal cases generally; and the failure to comply with Rule 1925 was very slight.
December 5, 1980, the date by which appellant was to file his statement under Rule 1925(b), was a Friday. On Monday, December 8, appellant's counsel filed a "Brief in Support of New Trial and/or Arrest of Judgment." Except for its title, the brief qualified in every respect as a statement under Rule 1925(b), for it contained a concise statement of the matters that appellant complained of. As regards appellant's complaint that he was denied his right to a public trial, the brief says:
This Court committed reversible err[or] when it locked the courtroom and forbid the public access to the jury selection in the instant case. The constitutions of both Pennsylvania and the United States guarantee to the defendant the right to a public trial at all stages of the proceedings. Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980).
Appellant's brief is stamped as "Received" by the District Attorney on December 8, at 10:42 A.M., and as "Filed Clerk of Courts Dec. 9, 1980." Thus, while the record does not disclose when the brief was delivered to the chambers of the lower court, it seems likely that delivery occurred on either December 8 or December 9. The lower court did not file its form opinion until December 10. It therefore appears that although appellant's brief was late, it was nevertheless filed in time in the sense that it was filed in time for the lower court to be able to respond to its arguments. The lower court's statement in its opinion that it was "unable to
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assume or presume the nature of appellant's objections" appears to have been made inadvertently, i.e., without awareness that appellant had already filed a brief stating his objections.
The record discloses other facts that bear upon the extent of appellant's failure to comply with Rule 1925(b). On December 11, 1978, appellant had filed post-trial motions for a new trial or in arrest of judgment. In those motions, he had argued the issues he now argues to us, including the issue that the lower court erred in excluding the public from the court room during the selection of the jury. Therefore, whenever the lower court became aware of appellant's brief, it must have recognized appellant's arguments as arguments that it had already considered and rejected. It may be that the lower court was, in a narrow sense, "within its rights" in nevertheless refusing to file an opinion explaining its rejection of appellant's arguments, that is, in deciding that because the brief was late, it need not be considered. However, the court had sentenced appellant to life imprisonment. We think that a refusal to explain a decision of such gravity should rest on something more substantial than the fact that counsel filed his brief on December 8 or 9 instead of on December 5, especially given the intrinsic importance of at least two of appellant's arguments: the right to a public trial, and (an argument that we do not need to reach, but that has in another case received the attention of the Supreme Court, Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981)), whether a person who has been hypnotized by the police may testify.
Finally, as it happens, we are not handicapped by the lower court's refusal to file an opinion. At the time of overruling appellant's objection, the lower court, as we shall see, stated its reasons for excluding the public from the court room during the selection of the jury. We are therefore in a position to appraise the validity of the court's ruling, and probably in as good a position as if the court had filed an opinion, for presumably in its opinion the court
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would have repeated the reasons it gave at the time it made its ruling. See Commonwealth v. Silver, supra, 499 Pa. 238, 452 A.2d at 1333.
In summary, therefore: It is true that appellant failed to file a statement under Rule 1925(b) by December 5, 1980, as required by the lower court. However, by December 8 or 9 he did file a brief, advising the lower court of the matters he complained of; one of those matters was the lower court's ruling excluding the public from the court room; appellant had earlier argued that matter; and the court's reasons for its ruling appear of record. On these facts it would be an abuse of our discretion to hold that appellant has waived his objection to the lower court's ruling.*fn2
The following is the entire record on the issue of the lower court's ruling excluding the public from the court room ...