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COMMONWEALTH PENNSYLVANIA v. JOHN H. LIGGETT (07/28/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: July 28, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN H. LIGGETT, APPELLANT

Appeal from the Judgment of Sentence of the Court of Common Pleas, Union County, Criminal Division, at No. 9, 1985.

Wickersham, Brosky and Watkins, JJ

Author: Brosky

CONCURRING MEMORANDUM BY BROSKY, J.

I agree with the majority that this appeal must be quashed. However, my reasons for reaching this conclusion differ fundamentally from the majority's rationale.

In the instant case, a trial de novo was held on March 21, 1985 before the court below after appellant appealed a summary conviction before a district magistrate. On May 21, 1985, the trial court, in the absence of counsel and appellant, filed an order stating that it had found appellant guilty, that appellant was required to pay fines and costs totaling $136.00, and that that sentence would become effective ten days from the date of the order if appellant did not file post-trial motions. Appellant did not file post-trial motions, but did file an appeal from the trial court's order on. June 18, 1985.

These facts demonstrate that the court below utterly failed to comply with the post-trial procedures set forth in the Rules of Criminal Procedure.*fn1 The trial court first failed to render its verdict within seven days after trial as required by Pa.R.Crim.P. 1122. More importantly, however, the trial court failed to comply with Pa.R.Crim.P. 1123 (c), which provides as follows:

(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record :

(1) of the right to file post-verdict motions and of the right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein;

(2) of the time within which he must do so as set forth in paragraph (a); and

(3) that only the grounds contained in such motions may be raised on appeal.(emphasis added).

Here, the trial judge did not advise appellant on the record of his rights and the consequences of failing to timely exercise those rights, but simply stated in his order that appellant had ten days to file post-trial motions. Appellant should, therefore, not be held to have waived any issues by failing to file post-trial motions.

Even if advising a defendant of his rights under Rule 1123 in the manner in which the trial court did is sufficient to allow a conclusion that a defendant has waived issues not raised in post-trial motions, I note that in the instant case the trial court did not inform appellant "that only the grounds contained in such motions may be raised on appeal." Such a failure alone precludes a conclusion that appellant has waived the issues he raises in this appeal. See Commonwealth v. Simmons, 236 Pa. Super. 466, 344 A.2d 593 (1976); see generally, Commonwealth v. Rinier, Pa. Super. , 386 A.2d 560 (1978) (plurality). Thus, the majority's holding that appellant has waived the issues he now raises because he failed to file post-verdict motions is in conflict with precedent of this Court.

Nevertheless, I am constrained to agree with the majority that the instant appeal must be quashed. The order entered by the court below was not a judgment of sentence, but simply provided that the court's sentence would become effective in ten days if post-trial motions were not filed. Such an order is not appealable. See Pa.R.A.P. 301 (c) and comment thereto.

Since no appealable order has ever been entered, I believe we have no alternative but to quash this appeal. However, given the fact that no judgment of sentence has ever been entered in this case, I believe the court below should allow appellant to file post-verdict motions. If such motions are filed and decided adversely to appellant, the court should impose sentence in accordance with the Rules of Criminal Procedure. An appeal could then be taken from that sentence.

Per Curiam Order

This is an appeal from the judgment of sentence imposed May 21, 1985, in the Court of Common Pleas of Union County sentencing appellant to pay a fine of $25.00 plus costs.

The appellant failed to file post-verdict motions after being advised by the lower court that he had ten (10) days within which to do so. Consequently appellant has waived the issue he now raises in this appeal. See Pa. R. Crim. P. 1123; Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Appeal quashed.

WICKERSHAM, J. concurs in the result.

BROSKY, J. files a Concurring Memorandum.


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