Appeal from the Order entered November 5, 1986 in the Court of Common Pleas of Dauphin County, Criminal Division, at No. 1441 CD 1986.
Robert H. Reese, Jr., Lancaster, for appellant.
Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
Del Sole, Montemuro and Hester, JJ.
[ 367 Pa. Super. Page 216]
Appellant was charged and found guilty by a district magistrate for Reckless Driving, a violation of 75 Pa.C.S. § 3714. Appellant later filed a summary appeal in the Dauphin County Court of Common Pleas. After a hearing on this matter, Appellant was adjudged guilty of Reckless Driving and received a sentence of 30 days imprisonment along with a $300.00 fine. The instant appeals follow.
Appellant asserts on appeal that the trial court erred in refusing Appellant's oral motion to dismiss inasmuch as the prosecuting state trooper was not acting within his scope of employment at the time the summary offense was committed.
[ 367 Pa. Super. Page 217]
Appellant posits that under these circumstances the trooper was required to file a private complaint rather than issuing a traffic citation. It is also urged on appeal that the trial court committed five instances of error when imposing Appellant's sentence.
Preliminarily, we find it necessary to summarize the sequence of events leading to the instant appeals so that certain procedural improprieties committed at the trial court level may be illuminated. On October 22, 1986, Appellant was found guilty of Reckless Driving by the trial court judge. During the same proceeding, Appellant received his sentence and was notified by the deputy district attorney that he had 10 days in which "to appeal any post-trial motions." (N.T., 10/22/86, 10). Appellant was not advised that an appeal to this Court must be filed within 30 days after sentencing. Thereafter, on November 3, 1986, Appellant filed a motion for a new trial. On the same day, a motion to modify the sentence was filed. In an order dated November 5, 1986, the trial court denied Appellant's motion to modify. In response, Appellant filed his first appeal from the November 5, 1986 order. Later, on January 12, 1987, the trial judge denied Appellant's motion for a new trial. Appellant then filed his second appeal to this Court on February 11, 1987.
Initially, we point out that the trial judge improperly pronounced verdict and sentence simultaneously. The proper procedure is to permit a defendant to file timely post-trial motions after the verdict is rendered, but before sentence is imposed. Commonwealth v. Dalbon, 296 Pa. Super. 122, 124-125, 442 A.2d 326, 327 (1982). See Comment to Pa.R.Crim.P. 1123. However, we note that Appellant did file timely post-trial motions which were eventually ruled upon by the trial court. Thus, Appellant was not prejudiced by this procedural misstep.
The next area of confusion appearing in the record is the fact that Appellant filed his first appeal from the November 5, 1986 order denying Appellant's motion to modify the ...