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COMMONWEALTH PENNSYLVANIA v. ANDREW L. GUMPERT (07/18/86)

filed: July 18, 1986.

COMMONWEALTH OF PENNSYLVANIA,
v.
ANDREW L. GUMPERT, APPELLANT



APPEAL FROM THE ORDER OF THE CHESTER COUNTY COURT OF COMMON PLEAS, CRIMINAL NO. 598-83

COUNSEL

William T. Wilson, Pittsburgh, for appellant.

Edward J. Greene, Assistant District Attorney, West Chester, for Com. appellee.

Cirillo, President Judge, and Rowley and Wieand, JJ. Wieand, J., files a concurring opinion.

Author: Cirillo

[ 354 Pa. Super. Page 596]

Appellant Andrew L. Gumpert was charged with driving under the influence of alcohol, 75 Pa.C.S. ยง 3731. He was initially tried before a jury, but no judgment resulted because the jurors could not reach a unanimous decision. A subsequent bench trial resulted in his conviction. On appeal, appellant challenges the conviction on the ground that prior to his bench trial there was no colloquy between the judge and himself to establish that he knowingly waived his right to a trial by jury.

Initially, we must consider a procedural shortcoming in the manner in which this appeal was taken. Appellant has captioned it as an appeal from the order denying his post-trial motions. The Commonwealth urges that insofar as such appeals must be taken from the final judgment of sentence, the present appeal must be dismissed as interlocutory.

If parties were to appeal from every trial court decision as it was made in the course of a case, such a "shotgun" approach to appellate review would swell our dockets and might even create the possibility of inconsistent decisions related to the same trial. Thus, there exists a

[ 354 Pa. Super. Page 597]

    long standing rule that parties must wait until a final decision is rendered, after which they may air their grievances in a single orderly appeal. In the criminal context, it is the judgment of sentence which marks the completion of the trial court proceedings, and accordingly (with certain carefully delineated exceptions), a judgment of sentence is a prerequisite to appealability. Commonwealth v. Luciano, 345 Pa. Super. 83, 497 A.2d 655 (1985); Commonwealth v. Reagan, 330 Pa. Super. 417, 479 A.2d 621 (1984); Commonwealth v. Smith, 322 Pa. Super. 389, 469 A.2d 676 (1983). Indeed, in reviewing a decision from the 3rd Circuit, the Supreme Court of the United States recently recognized the importance of this rule in Flanagan v. United States, 465 U.S. 259, 263-264, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288, 293-294 (1984):

The final judgment rule serves several important interests. It helps preserve the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the pre-judgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice.

We are satisfied that in the present case the error is purely one of form and not substance, and therefore cannot possibly be in contravention of the principles just set forth. The appeal is captioned as being from an interlocutory order, but it is clear that the case had been fully and finally resolved when the appeal was taken; the notice of appeal and judgment of sentence were entered on the docket on the same day. Thus, any and all trial court errors that might exist could be considered on this single appeal. Accordingly, we will not deem appellant's error fatal. This is not to say we are indifferent to the proper captioning of appeals, but only that justice is best served by proceeding to the merits of the case.

It is undisputed that prior to the bench trial appellant was given no jury waiver colloquy ...


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