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submitted: January 12, 1987.


Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. SA 777 of 1984.


John Elash, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com.

Brosky, Popovich and Montgomery, JJ. Montgomery, J., concurs in the result. Brosky, J., files a dissenting statement.

Author: Popovich

[ 362 Pa. Super. Page 393]

This is an appeal from an order of the Court of Common Pleas of Allegheny County adjudging the appellant, Joseph Ragoli, guilty of defiant trespass. We reverse.

The facts, viewed in a light most favorable to the verdictwinner, reveal that, at approximately 8:43 p.m. on the 20th of March, 1984, University of Pittsburgh Security Officer Albert M. Fink received a call from a fellow employee, Officer Harris, that an unauthorized person had been seen entering Benalum Hall, a University building located in the Oakland section of the City.

When Officer Fink arrived on the scene, Officer Harris was in the lobby speaking to the appellant. Mr. Ragoli was asked whether he had any identification. He responded in the negative. When he was questioned as to his address, he told the officers he had none; "[h]e live[d] on the street." A check in the phone book disclosed that the appellant was not listed.

After the officers told the appellant that he would have to leave the building because it was closed to the public, he refused to do so, became belligerent and stated he did not have to exit the premises since he was allowed in the building. However, his efforts to establish the legitimacy of his presence by means of a phone call to a "professor" proved unsuccessful when no one answered his call. Without the appellant's ability to prove that he was licensed to be on the premises, either as a student, faculty member, staff member or by someone empowered to authorize entry, he was arrested and later charged by complaint with defiant trespass. See Pa.R.Crim.P. 65.

The appellant's sentence before the district magistrate (fine and costs totaling $140.00) was appealed, as permitted by Pa.R.Crim.P. 63(b)(3), to the Court of Common Pleas "for a trial de novo." The facts, as just recounted, were presented at a bench trial conducted on November 7, 1985. The court's verdict, however, was not entered until the following day, and then it came in the form of a typed

[ 362 Pa. Super. Page 394]

    order in which the appellant was "adjudged Guilty of the offense of CC 3503(b)(1)(i) as charged . . . ."*fn1 In the same order, the court wrote that the appellant was "sentenced to pay the Fine and Costs imposed by the Issuing Authority." The order also made reference to, inter alia, the suspension of the sentence imposed pending the filing and disposition of post-verdict motions.*fn2 Counsel for the appellant, in addition

[ 362 Pa. Super. Page 396]

    to the appellant himself, filed post-verdict motions which were denied by order dated February 25, 1986. A motion for reconsideration of the February 25th order was filed, but the record does not disclose whether it was ever disposed of by the trial court.

The next document of record is the appellant's notice of appeal. It was being taken from the order of the trial court dated February 25, 1986 "reimposing" the November 8, 1985 "Judgment of Sentence", which was suspended during the ruling on post-verdict motions. The appeal was remanded upon the Superior Court's grant of the appellant's counsel's petition to withdraw. Jurisdiction was retained. New counsel was appointed and the appeal raised the sufficiency of the evidence and the trial court's alleged error in excluding deposition evidence.

[ 362 Pa. Super. Page 397]

Before we can address the merits of the appellant's claims, we must, as is our right and obligation, determine whether the case is properly before us for review. See Commonwealth v. Lewis, 288 Pa. Super. 198, 431 A.2d 357 (1981). This is so despite the absence of any objection from either party to the litigation. See Commonwealth v. Morgenthaler, 320 Pa. Super. 120, 466 A.2d 1091 (1983); Commonwealth Page 397} v. Williams, 290 Pa. Super. 158, 434 A.2d 179 (1981).

This case is mired in a procedural quagmire that necessitates a re-capitulation of this Court's position regarding procedural due process.

To begin with, in criminal law, an appeal is to be taken from the judgment of sentence and not an order denying either post-verdict motions (see Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244 (1951)), or the reconsideration of the same, the latter of which is foreign to the Rules of Appellate Procedure when it comes to perfecting an appeal therefrom.

Next, we observe that the appellant's appeal from the district magistrate's finding of guilty entitled him to a full panoply of procedural rights, first enunciated by this Court in Commonwealth v. Koch, 288 Pa. Super. 290, 431 A.2d 1052 (1981) to apply to appeals of summary convictions to the Court of Common Pleas for a de novo trial. See also Comment to Pa.R.Crim.P. 86 ("The Rules of Criminal Procedure are applicable generally to these [summary judgment] proceedings."). This translates into an explanation of one's post-verdict rights as set forth in Pa.R.Crim.P. 1123,*fn3 which

[ 362 Pa. Super. Page 398]

    in this case are even more extant because we are dealing with an appeal of a misdemeanor of the third degree that carried with it a potential upon conviction of a fine ($2,500) and imprisonment (one year).*fn4 See Koch, supra. Additionally, compliance with Pa.R.Crim.P. 1405 ("Sentencing Proceeding") was required. Nonetheless, neither Rule was adhered to by the trial court despite the provisions in the Rules indicating otherwise.

For example, Rule 1405 itemizes those requirements which must be met at the time set for sentencing; namely:

At the time of sentencing, the judge shall:

(a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing;

(b) state on the record the reasons for the sentence imposed;

(c) advise the defendant on the record:

(1) of his right to appeal and the time within which he must exercise such right and, if he is indigent, of his right to proceed in forma pauperis and to be provided free counsel;

(2) of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the denial of a motion to withdraw the plea);

(3) of the ten (10) day time limit within which such motions must be filed;

[ 362 Pa. Super. Page 399]

(4) that the defendant is entitled to be represented by counsel in preparing and litigating such motions; and

(5) that only claims raised in this court may be raised on appeal;

(d) require that a record of the sentencing proceedings be made and preserved so that it can be transcribed as needed. The record shall include:

(1) the record of any stipulation made at a pre-sentence conference; and

(2) a verbatim account of the entire sentencing proceeding.

A reading of the Rule discloses one salient point, i.e., everything which occurs in respect to the sentencing proceeding must be of record; this means in open court. Such a practice has been woven into our judicial system not only to afford the defendant the opportunity to question the proceedings, but it avails the appellate courts the advantage to assess any claims of error (be they related to pre-trial, trial, post-trial or sentencing) from a fully developed record and dispenses with a needless remand. See Commonwealth v. Rivera, 339 Pa. Super. 242, 488 A.2d 642 (1985) (en banc); Pa.R.App.P. 1926. To the same effect see Rule 1123, which, likewise, speaks in terms of the defendant being advised of his rights "on the record." Commonwealth v. Picker, 293 Pa. Super. 381, 439 A.2d 162 (1981).

Substitution for the Rules' "on the record" requirements cannot be had by resorting to an ex post facto document, form or opinion. See, e.g., Commonwealth v. Mullen, 321 Pa. Super. 19, 467 A.2d 871 (1983) (en banc; reasons for sentence must be given at the time of imposition and cannot be satisfied by subsequently written opinion to fill the void). Thus, the trial court's issuance of a sentence and the advisement of rights attendant thereto by means of a form document (see note 2, supra) were in derogation of Rules 1123 and 1405. To countenance such a practice, in the face of procedural rules and case law to the contrary, would be to look askance at the decisional law of this Commonwealth and, ultimately, invite mere lip-service to our Rules of

[ 362 Pa. Super. Page 400]

Criminal Procedure. Compare Vorhauer v. Miller, 311 Pa. Super. 395, 457 A.2d 944 (1983) (Rules of Civil Procedure). This we cannot and will not do in the face of specifically designated procedural requirements imposed upon a judge. See Picker, supra; Comment to Rule 1405.

The fact that the appellant was not present at trial, and we know he was not at the sentencing since none was held in open court, did not diminish the obligation of the court to see to it that a record was created that tracked the Rules of Criminal Procedure.*fn5 A record was created with regard to the trial, and properly done so with trial counsel's failure to object to his client's presence.*fn6 We see no reason why the sentencing could not have proceeded in the same fashion, given the non-capital nature of the offense (a misdemeanor). At 10A P.L.E. Criminal Law § 502 at 221 it is written:

Non-capital felony cases; waiver. In non-capital felony cases, as in capital cases, the defendant has a right to be present at all stages of the proceedings. However, in non-capital cases the defendant may waive his right to be present.

This ability to conduct criminal matters in the defendant's absence has been codified at Pa.R.Crim.P. 1117(a), which provides:

[ 362 Pa. Super. Page 401]

(a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict.

Therefore, based on the preceding, the defendant's abstention from the sentencing, like the trial, should not have impaired the court below from carrying on with the case. If this had occurred, the procedural underpinnings necessary to validate the order imposing sentence would have been met and the order entering sentence would have been legitimized. In its absence, however, we have a procedural vacuum not remedied by a sentence issued by order of court in circumvention of established rules.

Likewise, the sentence which appears in the appellant's case on "Civ Div Form 129" is unspecified; it was left by the trial court to the judgment of the "Issuing Authority", i.e., the district magistrate, to impose. This is unprecedented in light of the clear language by our Supreme Court in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and this Court in Mullen, supra, which stated in essence that the imposition of sentence must be accompanied by (contemporaneous) reasons and be of record. See Commonwealth v. Pringle, 304 Pa. Super. 67, 450 A.2d 103 (1982).

Instantly, the court below has delegated, one may say, its statutorily created obligation to impose sentence. See 42 Pa.C.S. § 9721 ("In determining the sentence to be imposed the court shall . . . consider. . . alternatives, and may impose them consecutively or concurrently: * * * (3) Partial confinement. * * * (5) A fine." (Emphasis added)); cf. Commonwealth v. Erb, 286 Pa. Super. 65, 428 A.2d 574 (1981) (Duty of trial court to determine the ability of a defendant to pay restitution; it is a non-delegable duty). Stated differently, the record does not really disclose any definite judgment of the Court of Common Pleas; in order

[ 362 Pa. Super. Page 402]

    to find out what the appellant must pay, we must go to the record of the magistrate. We have repeatedly held that the order entered by the court below is not such a judgment as the law contemplates, in cases of this type. See Commonwealth v. Miller, 173 Pa. Super. 168, 96 A.2d 153 (1953).

Therefore, if the sentence upon which the order appealed is suspect because of the stated irregularities in its imposition, the same order adjudging the appellant guilty is no less flawed. See Commonwealth v. Young, 184 Pa. Super. 658, 135 A.2d 774 (1957) (At a de novo trial from an appeal of a summary conviction, Court of Common Pleas should have made a "finding" that the defendant was guilty or not guilty and sentence then should have been entered). In order words, what we are left with is akin to a ruling by a trial court "dismissing" an appeal by a defendant of a summary conviction entered by a district magistrate where no entry of a finding of guilty or not guilty and the imposition of sentence were ever properly issued in open court and transcribed of record.*fn7

What we stated in Commonwealth v. Gula, 300 Pa. Super. 445, 446-47, 446 A.2d 938, 939 (1982) is instructive to us here:

This Court has held repeatedly that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either "guilty" or "not guilty." As we wrote in Commonwealth v. Carter, 230 Pa. Superior Ct. 401, 403, 326 A.2d 530, 531 (1974):

A judgment affirming the justice of the peace, dismissing the appeal, or sustaining the appeal, is not sufficient and will be reversed. Commonwealth v. Alton, 209 Pa. Super. 168, 224 A.2d 792 (1966); Commonwealth v. Young, 184 Pa. Super. 658, 135 A.2d 774

[ 362 Pa. Super. Page 403]

(1957); Commonwealth v. Miller, 173 Pa. Super. 168, 96 A.2d 153 (1953).

Furthermore, an order adjudicating guilt must be entered, even though it is implicit in the lower court's actions and opinion that the court considered the evidence supportive of a finding of guilt. Commonwealth v. Carter, supra; Commonwealth v. Wenyon, 230 Pa. Superior Ct. 342, 326 A.2d 633 (1974).

At bar, consistent with the precepts referred to in Gula, we find that the trial court's adjudging the appellant guilty*fn8 and imposing sentence via the "Issuing Authority" are contrary to the accepted manner and method of accomplishing both, as has developed in this Commonwealth.

Accordingly, we reverse the order of the trial court dated November 8, 1985*fn9 and remand with directions that the trial court enter a finding of guilty or not guilty in accordance with accepted practice in this Commonwealth, and, if the verdict is guilty, to impose sentence as more fully detailed in the body of this opinion. Jurisdiction is not retained by this Court.

[ 362 Pa. Super. Page 404]

BROSKY, Judge, dissenting:

I cannot join in the majority opinion based upon the decision of our Supreme Court in Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975), holding that this court cannot sua sponte address any issue not raised in the trial court. The issue here addressed by the majority -- the procedural irregularity of adjudication of guilt and simultaneous pronouncement of sentence -- has not been properly preserved for our review because it was not raised below and briefed to this Court. "Sua sponte consideration of issues deprives counsel of the opportunity to brief and argue the issues and the court of the benefit of counsel's advocacy." Id., 461 Pa. at 485, 337 A.2d at 57.

My examination of the record discloses properly preserved issues which appellant presents to our Court for review. These are: (1) whether the verdict was against the weight of the evidence;*fn1 and (2) whether the court erred in not allowing the defense to enter a deposition taken previous to trial. In my view, these issues should be addressed on the merits.

For the above reasons, I dissent.

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