NO. 1577 PHILADELPHIA, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at Nos. 80-06-1571, 72, 73, 75, 76, 77, 78.
Martin W. Bashoff, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Rowley and Van der Voort, JJ.
[ 317 Pa. Super. Page 366]
On Sunday evening, June 8, 1980, at about 11:30 P.M., appellant and two associates, Miller and Skowronski, entered a private social club in Philadelphia with the apparent purpose of ordering drinks. Appellant and Skowronski were members of the club, but Skowronski had been "flagged"*fn1 by the club apparently for brawling within the club. The club president, one Trimber, told them they would not be served because Skowronski had been "flagged" and because the three men were not dressed in accordance with the club's dress code.*fn2 Appellant and Skowronski uttered obscenities and threatened to "clean this fucking place up." A member, Mr. DeSimone, filling in at the time as doortender, asked them to leave. Appellant then threw a lighted cigarette at Mrs. DeSimone; subsequently she was struck in the forehead with a beer bottle; appellant punched the bartender DeWitt in the face and bit him on the stomach; bit the president Trimber on the
[ 317 Pa. Super. Page 367]
thumb; and wrestled with DeSimone, in the course of which DeSimone fell over a porch railing to the ground below, fracturing several ribs.
At the end of a non-jury trial before Judge Louis G. Hill, appellant was acquitted of aggravated assault as to Mr. and Mrs. DeSimone but was found guilty of: simple assault, and recklessly endangering another person as to both Mr. and Mrs. DeSimone and the bartender DeWitt; and guilty of conspiracy. Post trial motions were argued and denied, and appellant was sentenced to four months to one year incarceration in a work release program, and nine years probation. The trial judge also ordered restitution to the various victims, totaling in excess of $14,000, to cover medical expenses and lost earnings.
From the judgment of sentence appellant has appealed, raising three issues.
We must first resolve a preliminary matter. Defense counsel was directed, by order of court dated July 1, 1981, to file a concise statement of matters complained of on appeal pursuant to Rule 1925(b), Pa.R.A.P. No such statement was filed. The trial court in light of such omission addressed the issues raised in the post-trial motion. The Commonwealth contends that appellant has therefore waived all claims of error. Rule 1925(b) reads as follows:
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 the 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.
The purpose of the above rule is to provide the appellate court with the lower court's reasoning; unless a party informs the trial court ...