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COMMONWEALTH PENNSYLVANIA v. RUFUS E. LEWIS (02/16/83)

submitted: February 16, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
RUFUS E. LEWIS, APPELLANT



No. 3207 Philadelphia, 1981, Appeal from the Judgment of Sentence of December 3, 1981 In the Court of Common Pleas of Philadelphia County, Criminal Division, No. 3184 May Term, 1981.

COUNSEL

Neil Leibman, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Johnson and Montemuro, JJ.

Author: Cercone

[ 315 Pa. Super. Page 330]

This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County on December 3, 1981.

Appellant was arrested on March 15, 1981 by an officer of the Philadelphia Police Department and subsequently charged by information with receiving stolen property*fn1 and unauthorized use of an automobile.*fn2 In a bench trial conducted on December 3, 1981, appellant was convicted of the summary offense of unauthorized use of an automobile but was adjudged not guilty of receiving stolen property. After denying appellant's single oral post-verdict motion,*fn3 the lower court sentenced appellant to two years probation.

On appeal, appellant challenges the sufficiency of the Commonwealth's evidence, arguing that there was inadequate proof that (1) he was in fact "operating" the subject vehicle at the time of his arrest; and (2) the vehicle was being operated without the consent of its "owner".*fn4

Our review of the record leads us to the conclusion that we are required to vacate the judgment of sentence and remand the case to the lower court.

Instantly, appellant raises for our resolution an argument which was not advanced in his oral post-verdict motions.*fn5

[ 315 Pa. Super. Page 331]

Normally, we are required to regard such an issue as waived so far as our review is concerned. Commonwealth v. Dunston, 496 Pa. 552, 437 A.2d 1178 (1981). However, as our Supreme Court stated in Commonwealth v. Schroth, 458 Pa. 233, 328 A.2d 168 (1975), the failure to file post-trial motions will be construed as waiver only in cases where the record "affirmatively demonstrate[s] that the appellant was aware of his right to file post-trial motions, and that he knowingly and intelligently decided not to do so." Id., 458 Pa. at 235, 328 A.2d at 169. Consequently, where the record demonstrates that the post-verdict court did not comply with the mandate of Pa.R.Crim.P. 1123(c)*fn6 that the defendant be advised, after verdict, of his or her right to file post-verdict motions within 10 days, and that any issues not raised in those motions will be forever waived on appeal, it cannot be said that the defendant knowingly ...


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