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COMMONWEALTH PENNSYLVANIA v. WOODROW J. ZEITLEN (01/26/87)

submitted: January 26, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
WOODROW J. ZEITLEN, APPELLANT



Appeal from the Judgment of Sentence of August 25, 1986 in the Court of Common Pleas of Dauphin County, Criminal Division, at No. 2007, 24 2 C.D. 1985.

COUNSEL

Peter B. Foster, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com.

Beck, Kelly and Hoffman, JJ. Kelly, J., filed a concurring opinion. Beck, J., filed a dissenting opinion.

Author: Hoffman

[ 366 Pa. Super. Page 79]

This is an appeal from the judgment of sentence for violations of conditions of probation. Appellant contends that the lower court erred in (1) admitting testimony that violated the physician-patient privilege; (2) failing to state on the record its reasons for the sentence imposed; (3) finding that the Commonwealth had met its burden of proof that he had violated the terms of his probation; and (4) admitting hearsay evidence. For the reasons that follow we order appellant to supplement his brief to address our Supreme Court's decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

On February 12, 1986, appellant was sentenced to a probationary term of twenty-three months. Conditions of probation included regular visits with a psychiatrist and the taking of certain prescribed medications. On August 25,

[ 366 Pa. Super. Page 801986]

, the lower court conducted a revocation of probation hearing. At the conclusion of the hearing, appellant's probation was revoked and he was sentenced to one-and-one-half-to-seven-years incarceration. Appellant filed a timely petition to modify sentence which was denied by the lower court. This appeal followed.

Three of appellant's contentions raise challenges to the imposition of sentence. Before we can examine claims challenging the discretionary aspects of a sentence, we must first determine whether there is a "substantial question that the sentence imposed is not appropriate . . . ." 42 Pa.C.S.A. ยง 9781(b). It has been the practice of this Court to make this determination based upon an evaluation of the substantive argument advanced by appellant in the brief. See Commonwealth v. Easterling, 353 Pa. Superior Ct. 84, 509 A.2d 345 (1986); Commonwealth v. Dixon, 344 Pa. Superior Ct. 293, 496 A.2d 802 (1985); Commonwealth v. Drumgoole, 341 Pa. Superior Ct. 468, 491 A.2d 1352 (1985); Commonwealth v. Nixon, 311 Pa. Superior Ct. 450, 457 A.2d 972 (1983); Commonwealth v. Love, 295 Pa. Superior Ct. 276, 441 A.2d 1230 (1982). Our Supreme Court has recently disapproved of this practice, holding that an appellant must set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence imposed. Commonwealth v. Tuladziecki, supra, 513 Pa. at 511-12, 522 A.2d at 19 (citing Pa.R.A.P. 2119(f)). The purpose of such a separate section is to provide this Court with adequate information upon which to base our decision to exercise, or decline to exercise, our discretion to consider claims of this nature.

Mindful of our duty to liberally construe the Rules of Appellate Procedure "to secure the just, speedy and inexpensive determination of every matter to which they are applicable", we order appellant to supplement his brief to address the concerns expressed in Tuladziecki. See Pa.R.A.P. 105. Such a supplement will ensure more effective appellate review, allow us to make a knowledgeable determination

[ 366 Pa. Super. Page 81]

    as to whether we should exercise our discretion in this matter, and curtail the needless plethora of ineffective assistance claims. The supplement shall be concise, and must be filed within thirty days of the date of this opinion.

Jurisdiction is retained.

Disposition

Jurisdiction is retained.

KELLY, Judge, concurring:

I join Judge Hoffman's well-reasoned opinion. I write separately to express additional concerns pertaining to Pa.R.A.P. 2119(f) and Commonwealth v. ...


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