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COMMONWEALTH PENNSYLVANIA v. JOHN M. VERILLA (05/18/87)

filed: May 18, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN M. VERILLA, APPELLANT



Appeal from the Judgment of Sentence of April 29, 1986 and the Order of June 26, 1986 in the Court of Common Pleas of Cambria County, Criminal, at No. 0576-1983.

COUNSEL

Russell J. Heiple and Kevin J. Rozich, Johnstown, for appellant.

Lloyd G. Parry, Philadelphia, for Commonwealth, appellee.

Brosky, Del Sole and Cercone, JJ.

Author: Del Sole

[ 363 Pa. Super. Page 388]

Presented before us for our review are two consolidated appeals. The appeal at No. 952 Pittsburgh 1986 is taken from the Judgment of Sentence imposed following Appellant's convictions for first degree murder, kidnapping, conspiracy to commit murder and conspiracy to commit kidnapping. At No. 1149 Pittsburgh 1986, Appellant appeals an order which assessed him for the counsel fees and costs incurred by the County of Cambria for his court appointed representation. Because the facts and issues underlying

[ 363 Pa. Super. Page 389]

    each appeal are distinct, we will treat the appeals separately.

APPEAL AT 952 PITTSBURGH 1986

Following a jury trial, Appellant was convicted of charges associated with the kidnapping and murder of John Clark. Timely post-trial motions were filed on Appellant's behalf and a supplemental motion was later filed, all of which were denied by the trial court. Appellant was sentenced to serve a life term for his conviction of first degree murder and he received three sentences of 10-20 years incarceration for the crimes of kidnapping, conspiracy to commit murder and conspiracy to commit kidnapping. These 10-20 year terms were all ordered to be served concurrently with Appellant's life term.

On appeal Appellant raises ten issues in his statement of questions involved.*fn1

[ 363 Pa. Super. Page 390]

Issue number eight, which addresses the psychological examination of a witness was raised in a pre-trial motion but was not reasserted in Appellant's post-trial motions. Accordingly, we deem this issue waived and decline to address its merits. Pa.R.Crim.P. Rule 1123, 42 Pa.C.S.A.; Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Likewise, Appellant's issue number nine has not been properly preserved for our consideration. As recited previously, Appellant filed timely post-trial motions within ten days of October 3, 1984, the date his guilty verdict was returned. Appellant's motion included the following language: "THAT DEFENDANT reserves the right to supplement and add to the above list of Motions with additional reasons within a reasonable time following receipt of the transcribed record in this case." On November 4, 1984, Appellant filed a document entitled "Amended Motion in Arrest of Judgment". The sole reason for requesting relief contained in the amended motion was the claim Appellant now presents as issue number nine. Issue nine concerns the presentment authority of the Investigating Grand Jury and does not set forth a claim relative to Appellant's request for the transcript.

Pennsylvania Rule of Criminal Procedure 1123(a) provides in part: "If the grounds do not require a transcript neither the filing, argument, nor hearing of post-verdict

[ 363 Pa. Super. Page 391]

    motions shall be delayed for lack of transcript of the notes of testimony." (emphasis added). As a transcript was not necessary to a just determination of Appellant's amended motion, we conclude the amended motion was not timely filed and the issue contained therein was not properly preserved for appellate ...


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