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COMMONWEALTH PENNSYLVANIA v. WILLIAM MACSHERRY (02/16/88)

filed: February 16, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM MACSHERRY, APPELLANT



Appeal from the Judgment of Sentence entered October 31, 1986 in the Court of Common Pleas of Bucks County, Criminal Division, at No. 342 of 1985.

COUNSEL

James G. Barnes, Assistant Public Defender, Doylestown, for appellant.

James C. Dalton, Assistant District Attorney, Doylestown, for Com., appellee.

Olszewski, Del Sole and Beck, JJ. Del Sole, J., files dissenting opinion.

Author: Beck

[ 371 Pa. Super. Page 166]

Appellant was found guilty at a trial de novo on November 8, 1985. He filed a "Motion in Arrest of Judgment" on November 18, 1985. Although this original post-verdict motion suggested that appellant might file additional reasons after the notes of testimony were transcribed, the record does not reveal that he sought or received permission from the trial court to do so. Nevertheless, on April 17, 1986, appellant filed a "Supplemental Motion for a New Trial and in Arrest of Judgment."

We first address whether the additional issues raised in appellant's supplemental post-verdict motions are preserved for our review. Appellant filed his supplemental post-verdict motions more than five months after the verdict. A defendant normally has ten days to file post-verdict motions. Pa.R.Crim.P. 1123(a). The trial court considered all of appellant's post-verdict motions, including all the supplemental motions. A trial court's acting on untimely filed post-verdict motions, however, does not preserve for review issues raised in those motions. Commonwealth v. Gregory, 309 Pa. Super. 529, 455 A.2d 1210 (1983).

We note that in a significant number of criminal cases appealed to this court, the records show that a defendant files post-verdict motions (often boilerplate) which include a statement to the effect that "defendant reserves the right to file supplemental post-verdict motions after the filing of

[ 371 Pa. Super. Page 167]

    the trial transcript." We find no support in the law or court rules for such a "right," absent an express grant of permission from the trial court. The last sentence of Rule 1123(a) states: "If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony." This sentence implies that the trial court may allow filing of delayed post-verdict motions if the grounds require waiting for the transcript. In 1983 this court noted the ambiguity in the Rule and invited its amendment:

No doubt some assignments of error, especially to rulings on evidence and the charge, can be made specific only by reference to the transcript, but counsel shouldn't need the transcript to say in what respect the evidence was "insufficient" or why the verdict was "against the weight of the evidence." In any event, counsel may, after reviewing the transcript obtain leave to supplement boiler-plate assignments with specific ones. (It is to be hoped that the Procedural Rules Committee will re-examine Rule 1123; its ambiguities have generated quite unnecessary litigation. The procedure by which assignments may be added to a post-verdict motion might well be spelled out.)

Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268, 1273-74 (1983) (en banc) (emphasis added). Although the Rule was amended in 1985 to require specificity in post-verdict motions, the Rule still fails to spell out a procedure for supplementing post-verdict motions.

In a recent case, the Superior Court clarified the steps an appellant must take to preserve issues raised in supplemental post-trial motions. "[P]ermission must be requested and granted on the record before supplemental post-trial motions may be filed." Commonwealth v. Sheaff, 365 Pa. Super. 613, 530 A.2d 480 (1987) (emphasis omitted).*fn1

[ 371 Pa. Super. Page 168]

In the instant case, the record does not show that appellant was granted permission to file untimely post-verdict motions. Thus, appellant's "Supplemental Motion for a New Trial and in Arrest of Judgment" was not timely filed and preserves no issues for our review.

Next, we consider the effect of appellant's original "Motion in Arrest of Judgment," which was timely filed. Appellant's motion states the charge against him, and then appellant moves the Court to arrest the judgment against him and assigns the following reason therefore:

1. The verdict was against the weight of the evidence in that the Commonwealth failed to establish that the defendant's license was in fact subject to a driving under the influence related suspension on the date on which the defendant was cited for operating a motor vehicle while under driving under the influence related suspension.

We find that this motion is boilerplate and preserves no issue for our review. Holmes. The motion is defective in several respects. First, although the motion purports to say more than simply "the verdict was against the weight of the evidence," the rest of the sentence merely recites the elements of the offense and thus fails to specify why the verdict was against the weight of the evidence. In Holmes we gave this example of such a specific motion: "that the identification testimony was so vague, and the alibi testimony so powerful, that the verdict shocks the conscience." 315 Pa. Super. at 267, 461 A.2d at 1273. Second, appellant has muddled the distinction between evidentiary weight and sufficiency by raising a weight of the evidence claim in a motion in arrest of judgment. See Commonwealth v. Whiteman, 336 Pa. Super. 120, 123-26, 485 A.2d 459, 461-62 (1984). The proper procedure to challenge the weight of the evidence is by a motion for a new trial. Holmes, 315 Pa. Super. at 260, 461 A.2d at 1270. Third, if the motion preserves any issue for review, it

[ 371 Pa. Super. Page 169]

    would not be either of the issues in appellant's statement of questions presented in his brief to this court.

Appellant's Statement of Questions Presented is as follows:

A. Did the lower court err in applying 75 Pa.C.S. § 1541, by finding the appellant guilty of driving under suspension/driving under the influence related, when the statute clearly states that suspension commences only after the license is surrendered to the state, and at the time of the appellant's arrest, he had not yet surrendered his license?

B. Did the lower court err in finding the appellant guilty of driving under suspension/driving under the influence related in violation of 75 Pa.C.S. § 3731(e)(6), when the court agreed with the Pennsylvania Department of Transportation's policy of extending a one month suspension indefinitely until the license is ultimately surrendered to the state?

These are not challenges to the weight of the evidence. See Commonwealth v. Nelson, 514 Pa. 252, 523 A.2d 723 (1987); Commonwealth v. Stambaugh, 355 Pa. Super. 73, 512 A.2d 1216 (1986); Commonwealth v. Datesman, 343 Pa. Super. 176, 494 A.2d 413 (1985). Thus, we conclude that appellant has preserved no issues for our review.

Although we find waiver, we choose to consider an issue of statutory interpretation in response to the dissent which addresses the merits. Appellant claims that although he received notification to surrender his license, his license was not suspended because he never surrendered it. Appellant bases his contention on his interpretation of 75 Pa.Cons.Stat.Ann. § 1541(a):

§ 1541. Period of revocation or suspension of operating privilege

(a) Commencement of period. -- The period of revocation or suspension of the operating privilege shall commence on the date on which the driver's license was surrendered to and received by the court or the department, as the case may be. The period of revocation or suspension of a nonresident licensed driver or an unlicensed driver shall

[ 371 Pa. Super. Page 170]

    commence on the date of conviction, on a date determined by the department in accordance with its regulations. The department may, upon request of the person whose license is suspended, delay the commencement of the period of suspension for a period not exceeding six months whenever the department determines that failure to grant the extension will result in hardship to the person whose license has been suspended.

75 Pa.Cons.Stat.Ann. § 1541 (Purdon 1977) (amended 1986).

This section is ambiguous. It could mean, as the dissent asserts, that a driver's operating privilege is not under suspension until he returns his license to PennDOT, however long that may take. It could also mean that the driver's operating privilege is suspended on the date set by PennDOT but that the prescribed period of suspension does not commence running (for the purpose of crediting the driver against the term of suspension and thus moving the driver closer to restoration of the privilege) until he returns his license to PennDOT. When faced with the interpretation of an ambiguous statute, we must ascertain and effectuate the ...


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