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COMMONWEALTH PENNSYLVANIA v. DEANNDRIA PYETT (03/23/88)

filed: March 23, 1988.

COMMONWEALTH OF PENNSYLVANIA,
v.
DEANNDRIA PYETT, APPELLANT



Appeal from the Judgment of Sentence October 30, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 8505-2751-53.

COUNSEL

Patricia M. Dugan, Philadelphia, for appellant.

George S. Leone, Assistant District Attorney, Philadelphia, for Com., appellee.

McEwen, Olszewski and Cercone, JJ.

Author: Cercone

[ 372 Pa. Super. Page 292]

After a trial by jury appellant, Deanndria Pyett, was convicted of third degree murder and possession of an instrument of crime. Timely post-trial motions were filed and denied by the court following a hearing. Appellant was sentenced to ten (10) to twenty-five (25) years incarceration. This appeal from the judgment of sentence followed.

Appellant raises two issues for our review: whether the trial court erred in allowing the prosecutor to cross-examine appellant with inculpatory statements allegedly made to the police by a person who was neither present nor testified at trial, and whether the sentence imposed upon appellant was an abuse of the trial court's discretion.

Before turning to the merits of appellant's first contention, we must determine if the issue is properly before us. Subsequent to trial, the court informed appellant of her

[ 372 Pa. Super. Page 293]

    right to file post-trial motions. Specifically, the court stated that the motions must be in writing and "must spell out with specificity the reasons why you are entitled to a new trial or a motion in arrest of judgment". (emphasis added) Failing to heed the court's directive, appellant filed "boilerplate" post-trial motions. Neither the docket entries filed with this court nor the notes of testimony adduced at the hearing on post-trial motions disclose that appellant requested or was granted permission by the court to file supplemental post-verdict motions. Yet, at the hearing on the motions, counsel for appellant revealed that she slipped a copy of the supplemental motions she wished to argue under the door of the judge's chambers and the court entertained argument on those motions. In her statement of matters complained of on appeal pursuant to Pa.R.A.P., Rule 1925, 42 Pa.C.S.A. appellant briefed the issues contained in her supplemental post-trial motions. The issues were addressed in the opinion of the court below.

The Commonwealth urges us to find that appellant has waived her right to argue on appeal that the lower court erred in allowing the Commonwealth, on cross-examination, to question her with inculpatory statements allegedly made to the police by a person who was neither present at trial nor appeared as a witness. The Commonwealth maintains this allegation was contained in appellant's supplemental post-trial motions which the record reveals were filed without the court's permission, and thus, not to be considered. See Pa.R.Crim.P., Rule 1123(a), 42 Pa.C.S.A. Appellant asserts that the trial court, by granting continuances of the hearing on post-trial motions due to the unavailability of transcripts, sanctioned the filing of supplemental motions even though appellant made no formal request on the record to do so. Further, appellant argues that a finding of waiver flies in the face of judicial economy as this court will likely be confronted with the issue that is waived in a Post Conviction Hearing Act (PCHA) petition. See 42 Pa.C.S.A. ยง 9541 et seq.

[ 372 Pa. Super. Page 294]

Our court has long held that assignments of error in the court below will not preserve any issue for appellate review, unless they state with specificity the issues complained of on appeal. See Commonwealth v. Holmes, 315 Pa. Super. 256, 259, 461 A.2d 1268, 1274 (1983) (en banc). Thus, appellant's post-trial motions which were presented in "boilerplate" fashion would appear to be waived. However upon request to the court, a defendant may be granted leave to file additional reasons for a new trial or in arrest of judgment but this is a matter of discretion with the trial court. ...


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