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submitted: February 16, 1983.


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.


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 and intelligently surrendered his right to advance arguments on appeal by failing to include them in post-trial motions. Commonwealth v. Von Aczel, supra; and Commonwealth v. Getson, 291 Pa. Superior Ct. 632, 436 A.2d 679 (1981).*fn7

[ 315 Pa. Super. Page 332]

Instantly, upon the rendering of the verdict, defense counsel orally entered a single post-trial motion which was immediately denied by the lower court, which then proceeded to impose sentence. Although the court advised appellant of his right to request that the court reconsider its sentence, at no time did the court, prior to counsel's advancing of the oral post-verdict motion and the subsequent passing of sentence, fully apprise appellant of his rights conferred by Rule 1123(c). As a result, appellant could in no way appreciate the consequences of his failure to argue orally before the post-verdict court all assignments of error which might later form the basis of an appeal to the Superior Court. Moreover, the record is bare of any consent on appellant's part to present his post-verdict motions in oral argument and thereby waive his right to file written motions. See Pa.R.Crim.P. 1123(b). Accordingly, we must vacate the judgment of sentence and remand for the filing of post-verdict motions. Following the lower court's decision on the propriety of granting these new motions, the parties may again appeal should they so elect. In taking such an appeal, they may advance any matters presented but left unresolved by the instant appeal. Commonwealth v. Bonarrigo II, 302 Pa. Superior Ct. 274, 448 A.2d 634 (1982); Commonwealth v. Rowe, 268 Pa. Superior Ct. 380, 408 A.2d 516 (1979).

[ 315 Pa. Super. Page 333]

The judgment of sentence, dated December 3, 1981, is vacated and the case remanded for the filing of supplemental post-verdict motions. Jurisdiction is relinquished.

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