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COMMONWEALTH PENNSYLVANIA v. ROSE C. MERCALDE (08/20/87)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 20, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ROSE C. MERCALDE, APPELLANT

Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. SA 781 of 1984.

COUNSEL

Rose C. Mercalde, appellant, in propria persona.

Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.

Wieand, Kelly and Popovich, JJ. Wieand, J., filed a concurring and dissenting opinion.

Author: Popovich

[ 365 Pa. Super. Page 595]

This is an appeal from the order of the Court of Common Pleas of Allegheny County denying the post-trial motions of the appellant, Rose Mercalde, which, in effect, activated the judgment of sentence suspended pending the disposition of said motions. We reverse.

The record indicates that the appellant appealed the summary conviction and fine imposed by a district justice for harassment to Common Pleas Court. A non-jury trial took place on May 15, 1986. The following day, the trial court mailed to the appellant its order, which reads:

[ 365 Pa. Super. Page 596]

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA vs. Rose Mercald

NO. SA 781 19 84

Order OF COURT

AND NOW, this 16th day of May 19 86, after hearing, the Defendant is adjudged Guilty of the Offense of CC 2709 as charged and is sentenced to [ILLEGIBLE WORD] the Fine and Costs imposed by the Issuing Authority.

YOU HAVE THE RIGHT TO FILE WRITTEN MOTIONS FOR A NEW TRIAL AND IN ARREST OF JUDGMENT WITHIN TEN (10) DAYS IN ACCORDANCE WITH RULE 1123 OF THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE.

Only the grounds contained in such motions may be raised on appeal to the Appellate Court.

You have the right to the assistance of counsel in filing the aforesaid motions; and if you cannot afford counsel, the Court will appoint counsel for you.

The sentence herewith imposed is suspended pending the filing and disposition of motions. If no motions are filed, you have 30 days from this date to appeal to the Intermediate Appellate Division if you so desire.

Certified from the Record

___ (Prothonotary)

___ (Deputy)

[ 365 Pa. Super. Page 597]

The appellant's counsel filed a "Notice of Appeal From Summary Conviction" challenging, inter alia, the procedural improprieties "in that the verdict and sentence, if any, were not announced in open court immediately upon the conclusion of the trial." (Point 11, Paragraph h*fn1

Although the appellant did pursue such a claim in her pro se brief to this Court, and is not responded to by the trial court in its opinion to us, we note its existence in the course of reconstructing the facts at bar, the ability of the trial court to remedy the procedural errors, and its failure to do so.

The procedural shortcomings in the case at bar are identical to those present in Commonwealth v. Ragoli, 362 Pa. Super. 390, 524 A.2d 933 (1987) (Opinion by Popovich, J., with Montgomery, J. Concurring in Result and Brosky, J. Dissenting).

Accordingly, for the reasons set forth in Ragoli, which are responsive to this case as well, we reverse the order of

[ 365 Pa. Super. Page 598]

    the trial court and remand for proceedings consistent with the mandate of Ragoli. Accord Commonwealth v. Adame, 363 Pa. Super. 405, 526 A.2d 408 (1987).

Order reversed and case remanded for proceedings not inconsistent with the opinion herein written.*fn2 Jurisdiction is not retained.

WIEAND, Judge, concurring and dissenting:

I agree with my learned colleagues of the majority that the procedure followed by the trial court to announce its verdict was defective and should be discouraged.

However, it is difficult to perceive that this procedural defect was prejudicial to any rights of the defendant. Therefore, it does not require that the guilty verdict be vacated. Cf. Pa.R.Crim.P. 90.

Although appellant's pro se brief is difficult to comprehend, my own review of the record suggests that the evidence was sufficient to support the trial court's verdict and that there was no error which compels the granting of a new trial.

Appellant also argues in her brief that she was denied the right to be heard before sentence was imposed. The record confirms that she is correct. Because the sentence was imposed by mail simultaneously with the finding of guilt, there was no separate sentencing hearing. Consequently, appellant did not have an opportunity to be heard before she was sentenced. Because this irregularity has been

[ 365 Pa. Super. Page 599]

    preserved and is properly before us,*fn1 I would vacate the judgment of sentence and remand for resentencing.


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