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COMMONWEALTH PENNSYLVANIA v. LEONARD HOTTINGER (05/26/87)

submitted: May 26, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
LEONARD HOTTINGER, APPELLANT



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Lehigh County, No. 1029 of 1981.

COUNSEL

Theodore Q. Thompson, Ambler, for appellant.

William H. Platt, District Attorney, Allentown, for Com.

Cirillo, President Judge, and Rowley and McEwen, JJ.

Author: Rowley

[ 370 Pa. Super. Page 529]

This appeal is from an order denying appellant Leonard Hottinger's motion for a new trial on the basis of after-discovered evidence. As the result of an incident in the city of Allentown on August 14, 1981, appellant was convicted of unlawful restraint, indecent assault, indecent exposure, and open lewdness. Appellant raises five issues: 1) whether the

[ 370 Pa. Super. Page 530]

    evidence was sufficient to support the verdict; 2) whether the trial court erred in denying appellant's request for a curative instruction after the assistant district attorney in her closing argument commented upon what appellant did not say to the police at the time of his arrest; 3) whether the trial court erred in denying appellant's motion for a mistrial, made for the same reason as the request for a curative instruction; 4) whether the trial court erred in denying appellant's motion for a new trial based on afterdiscovered evidence; and 5) whether the trial court erred in denying appellant access to the victim's mental health records. We affirm.

This case has a complex procedural history. Appellant was tried before a jury and on June 10, 1982, was found guilty of all charges.*fn1 Appellant filed motions for a new trial and in arrest of judgment on June 17, 1982. These post-trial motions included the first, second, third, and fifth issues that appellant now raises before this Court. After a series of continuances had been granted, the trial court on July 1, 1983, ordered that appellant's post-trial motions be dismissed for failure to proceed timely.

Throughout these proceedings appellant had been represented by counsel from the Public Defender's Office. After dismissal of his post-trial motions, appellant retained private counsel, whose representation of appellant continues to the present time. On February 9, 1984, appellant's new counsel petitioned the court to set aside its order dismissing appellant's post-trial motions. The petition was granted, argument was heard on the motions, and the trial court denied the motions in an order filed on March 11, 1985. On May 23, 1985, appellant was sentenced to a term of imprisonment of nine to twenty-three months. On or about that date appellant filed an application for release pending appeal in which he asked the trial court to continue bail and to

[ 370 Pa. Super. Page 531]

"stay the execution of sentence" or to "stay the sentence." On the day of sentencing the trial court ordered that bail be continued on the condition that appellant pursue his appeal to this court within the time permitted by law. On or about June 3, 1985, appellant filed a petition for reconsideration of sentence and a motion for a new trial based upon after-discovered evidence. The trial court denied the petition for reconsideration of sentence on June 12, 1985. After a hearing on the motion for a new trial based on after-discovered evidence, the trial court denied the motion on November 19, 1986. On December 16, 1986, appellant filed a timely appeal from that order.

The salient fact to emerge from this mass of procedural detail is that only the fourth of appellant's five issues is properly before this Court. The notice of appeal that was filed on December 16, 1986, states that appellant "hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on November 19, 1986." In its order of November 19, 1986, the trial court denied appellant's motion for a new trial based on after-discovered evidence and addressed no other issue. Appellant, having appealed from that order, can address no other issue in this appeal. He ...


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