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COMMONWEALTH PENNSYLVANIA v. ROBERT SHEAFF (08/28/87)

filed: August 28, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT SHEAFF, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 1622 to 1624 August Term 1982.

COUNSEL

Louis Lipschitz, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, Olszewski and Tamilia, JJ.

Author: Tamilia

[ 365 Pa. Super. Page 616]

Appellant was found guilty by a jury of burglary and was sentenced to seven and one-half to fifteen years incarceration.

[ 365 Pa. Super. Page 617]

This is an appeal from the judgment of sentence entered after denial of appellant's post-trial motions.

We find no need to address appellant's sufficiency of the evidence argument because appellant failed to properly preserve this issue for appellate review in his post-trial motions. In his post-trial motion, filed December 9, 1983, appellant framed the sufficiency of the evidence issue in "boilerplate" fashion, and thus did not preserve the issue for appellate review as required by Commonwealth v. Holmes, 315 Pa. Super. 256, 259-60, 461 A.2d 1268, 1270 (1983). See Commonwealth v. Martin, 346 Pa. Super. 129, 499 A.2d 344 (1985); Comment to Pa.R.Crim.P. 1123. While appellant did file a supplemental post-trial motion on February 8, 1984, where he reasserted his sufficiency of the evidence argument with the requisite specificity, the record does not show that appellant ever sought the necessary permission of the trial court to file this supplemental post-trial motion nunc pro tunc. Whether a defendant can file additional reasons for a new trial is a matter of discretion with the trial court. Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974).

This Court, in its recent Opinion in Commonwealth v. Kelly, 365 Pa. Super. 28, 528 A.2d 1346 (1987), quoted the Pennsylvania Supreme Court in Talley as follows:

The Supreme Court, in deciding the trial court did not abuse its discretion in refusing to permit the defendant to file additional reasons for a new trial, stated:

The rule provides that a defendant may request leave to file additional reasons for a new trial. This does not imply that a defendant can file these as a matter of right, but it is a matter of discretion with the trial court. In the facts of this case, we fail to see an abuse of that discretion.

Id., 456 Pa. at 579, 318 A.2d at 924.

We then went on to say:

Rule of Criminal Procedure 1123(a), which is derivative of the rule cited in Talley (19 P.S. 1123) (footnote omitted), states:

[ 365 Pa. Super. Page 618]

    merely submitted) despite the fact that the court below addressed them on the merits. Commonwealth v. Gregory, 309 Pa. Super. 529, 455 A.2d 1210 (1983). Accordingly, the aforementioned issues have been waived.*fn*

To summarize and clarify our position in this case and the cases cited herein, we hold that permission must be requested and granted on the record before supplemental post-trial motions may be filed. Counsel may not simply reserve the right to file such motions by adding a notation to that effect in the original post-trial motions. In order to preserve the right to file supplemental motions after the transcript is received, a request must be approved in advance in a timely fashion. If permission is granted, and supplemental motions are filed, an allegation that could have been raised without the need for a transcript is still considered to be waived. See Talley, supra. This procedure is required by the mandate of Pa.R.Crim.P. 1123(a).

Since we find appellant's sufficiency argument waived, we will not review issues which have not been properly preserved for review. However, since appellant's remaining arguments were properly raised in his post-trial motions, we will address them.

Appellant contends the trial court erred in admitting portions of a police report which contained the statement of a police officer -- the partner of a testifying officer -- who was not available to testify at the time of trial. We find no merit in this argument due to the fact that appellant's counsel himself referred to the non-testifying officer's report and even had a portion of that report admitted into evidence through testimony (N.T. 12/2/83, pp. 57-60). Appellant cannot now argue that it was error for the trial court to allow the Commonwealth to admit into evidence the full text of the non-testifying officer's report as hearsay (N.T. 12/2/83, pp. 77-79), when appellant's counsel "opened the door" for such testimony by first referring to the

[ 365 Pa. Super. Page 620]

    report. As we stated in Commonwealth v. McCabe, 345 Pa. Super. 495, 498 A.2d 933 (1985): "If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area." (Citations omitted.) Thus we find no error in admitting the report due to appellant's effective waiver of objection by first referring to the report.*fn1

Appellant claims that the trial court erred in refusing to strike for cause a juror, Mr. Driscoll, who was employed as a crime investigator by a local community organization partially funded by the city and state governments. In Commonwealth v. Jones, 477 Pa. 164, 168, 383 A.2d 874, 876 (1978), our Supreme Court held "that one's status as a law enforcement officer in and of itself is insufficient to require disqualification as a juror in a criminal case." In quoting our earlier Opinion in Commonwealth v. Colon, 223 Pa. Super. 202, 206-7, 299 A.2d 326, 328 (1972), the Supreme Court stated:

The categories of relationships which automatically call for removal should be limited because it is desirable to have a jury composed of persons with a variety of backgrounds and experiences. We believe that an enforcement officer is capable of professional objectivity in considering the case of a defendant accused of a crime against society. Absent any real relationship to the case, the removal of an enforcement officer should depend on the sound exercise of discretion by the trial judge. (Emphasis added by the Court).

Id., 477 Pa. at 168, 383 A.2d at 876. Further, the Jones, supra, Opinion went on to adopt the following two-tier analysis we established in Colon, supra, to determine whether a police officer or law enforcement official could serve as a juror in a criminal case:

[ 365 Pa. Super. Page 6211]

. If a police officer has a 'real relationship' to the case, he must automatically be excluded from ...


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