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filed: January 21, 1983.


No. 127 Pittsburgh, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, at No. 1447 of 1980


Carmela R.M. Presogna, Assistant Public Defender, Erie, submitted a brief on behalf of appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Cavanaugh, Brosky and Montgomery, JJ.

Author: Brosky

[ 309 Pa. Super. Page 530]

This is an appeal from judgment of sentence for robbery.*fn1 Appellant raises eleven issues on appeal. Three of them were not preserved through inclusion in the written

[ 309 Pa. Super. Page 531]

    post-verdict motions and are therefore waived on appeal.*fn2 Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Since the post-verdict motions were not timely filed we are unable to review all but one of the remaining claims of error presented. One issue, of ineffectiveness, is properly before this court. We find it to be a meritless claim. Hence, we affirm.

The verdict in this case was entered on April 15, 1981. Post-verdict motions were first filed on April 28, 1981, 13 days after the verdict.*fn3 Pennsylvania Rule of Criminal Procedure 1123(a) provides in part:

Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment.

Despite the violation of this requirement, the trial court proceeded to address the issues raised by the motion on its merits.

The issue before us is this: When post-verdict motions have not been timely filed, and yet those motions were acted upon by the trial court on their merits, are the issues raised in those post-verdict motions preserved for appeal? We hold that they are not preserved but have been waived.

Research discloses no appellate court opinion in this Commonwealth entirely on point. Guidance can nonetheless be obtained from some case law.

In Commonwealth v. Horner, 449 Pa. 322, 296 A.2d 760 (1972), the Supreme Court of this Commonwealth treated a

[ 309 Pa. Super. Page 532]

    case involving a tardy filing of an appeal. Writing for the Court, the late Justice Manderino stated: "The time for taking an appeal cannot be extended as a matter of grace." Commonwealth v. Horner, supra, 449 Pa. at 324, 296 A.2d at 762.*fn4 We recognize that this statement was made in reference to the violation of a different rule than the one before us.*fn5 Nonetheless, the principle is applicable in the present context. This is particularly so when one considers that post-verdict motions are considered part of the appeals process in this state. U.S. ex rel. Mandrier v. Hewitt, 409 F.Supp. 38 (C.D.Pa., 1976).

Another Supreme Court case provides a situation analogous to the one before us. Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980). Philpot involved the same rule and the same section of that rule as was violated here*fn6 -- but not the same provision. In Philpot, defendant violated the provisions of R. 1123(a) which require that issues be raised in a written post-verdict motion, and which restricts argument in the post-verdict hearing to those issues contained in the written post-verdict motion. Defendant filed no post-verdict motions, but argued issues orally which were then considered by the post-verdict court. The Supreme Court disapproved, stating: "The post-verdict court's violation of Rule 1123(a) and Blair, however, does not alter our conclusion that appellant's present contentions are not properly preserved." Commonwealth v. Philpot, supra, 491 Pa. at 600, 421 A.2d at 1047.

In Commonwealth v. Blair, cited in the above passage from Philpot, the Supreme Court wrote:

The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth, issues not presented in compliance with the rule will not be considered by our trial courts and appellate courts.

[ 309 Pa. Super. Page 533]

    our legal system. Counsel acts as an advocate for his client. Counsel's acts or omissions in his representation are welded to his client's case. To hold otherwise would work a forfeit of not only this, but all other procedural requirements.

The trial court in Styer found another rationale for allowing consideration of the tardily filed motions:

The rights of the public will not be harmed if defendant's motion is heard on its merits; those of the defendant will be if it is not.


This test is impractical. It would be difficult to conceive of a situation in which the defendant's interest in having the tardy post-verdict motion considered*fn9 would not outweigh the interests served by disallowing them from treatment on their merits. Under this test, the result would almost invariably be that tardy motions would be treated as if timely filed. The time requirement of R. 1123(a) would thus be rendered a functional nullity.

In any given individual case, it is incontestible that the most serious consequences attend the violation of procedural rules. This is in the nature of procedural rules and the sanctions for failure to comply with them. But other factors must be considered before adopting the test given in Styer.

The cumulative result of applying the weighing test suggested above would impair on the functioning of the courts.*fn10 Procedural time limits would become operationally

[ 309 Pa. Super. Page 535]

    meaningless and the orderly disposition of matters before the courts would be hampered.

In addition to this logistical consideration, policy ends of the highest order are served by the final determination of legal controversies. The application of a weighing test with regard to procedural time requirement violations would prolong the active status of a case. Certainty as to the end point of legal proceedings and as to the results of those proceedings is one of the necessary components of a legal system. Without such certainty, a legal system cannot act effectively.

For both of these reasons, we must reject the approach offered by the weighing test. Further, we see the Supreme Court cases Horner, Philpot and Blair as indicative of a strong disposition to rigorous enforcement of procedural appeals rules. We would run counter to that flow only in the presence of special circumstances mandating a contrary result. Such circumstances are not present here. We hold that a violation of the time requirements of R. 1123(a) will work a waiver on appeal, notwithstanding the trial court having treated a tardily filed post-verdict motion on its merits.

One issue alone is properly brought here on appeal: Whether trial counsel provided ineffective assistance in failing to file a motion to dismiss based on the ground that defendant was denied due process of law when the authorities failed to arraign him before a magistrate within six hours of his arrest.*fn11

[ 309 Pa. Super. Page 536]

Appellant alleges that he turned himself in to the police at 3 p.m., August 14, 1980, and was not arraigned until 11 p.m., 8 hours later. Any evidence which was obtained after a period of 6 hours of custody could be suppressed. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). But no such evidence is alleged to have been obtained here.

Suppression of evidence is appellant's only remedy for a delay in arraignment.

There may or may not have been an unnecessary delay between the time the appellant was arrested and the time he was preliminarily arraigned. Even if there was, however, that fact would not require a court to quash the appellant's arrest. Where there has been such a delay, a court must suppress any evidence obtained as a result of the delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). There is no requirement that an arrest be quashed for such a delay.

Commonwealth v. Johnson, 291 Pa. Super. 566 at 576-7, 436 A.2d 645 at 651 (1981).

Thus, any action by counsel to seek a dismissal on the basis of a delay in arraignment would have been fruitless. Counsel's failure to raise a meritless claim obviously cannot constitute ineffective assistance of counsel. Commonwealth v. Lennox, 250 Pa. Super. 80, 378 A.2d 462 (1973). There was, therefore, no ineffective assistance in this regard.

In conclusion, only one issue, ineffectiveness vis-a-vis arraignment, is properly before this court; and as explained herein, it is meritless. Three issues were waived due to their non-inclusion in the post-verdict motions. All of the remaining issues were waived due to tardy filing of the post-verdict motions.

Judgment of sentence affirmed.

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