Appeal from the Judgment of Sentence in the Court of Common Pleas of Crawford County, Criminal Division, No. 1986-664
Theodore H. Watts, Meadville, for appellant.
John F. Spataro, Assistant District Attorney, Meadville, for Com., appellee.
Cavanaugh, Tamilia and Hester, JJ.
[ 379 Pa. Super. Page 569]
Appellant Richard Tedesco was found guilty of the summary offense of harassment, 18 Pa.C.S. § 2709(3),*fn1 and after denial of his post-verdict motion, he was sentenced to pay a $100 fine and costs. This appeal followed.
A review of the record discloses appellant was found guilty on January 6, 1987, and the adjudication Order was filed on January 7, 1987. Appellant was advised of the need to file post-verdict motions within ten (10) days. See Pa.R.Crim.P. 1123. Both the time-stamp on the motion and the docket entry indicate his post-verdict motion was not filed until January 26, 1987. Thus, it would appear appellant has not preserved the issue for appellate review. See Commonwealth v. Gregory, 309 Pa. Super. 529, 455 A.2d 1210 (1983) (although untimely post-verdict motions were acted upon by the trial court on their merits, the issues raised in the motions were not preserved for appeal but were waived). See also Commonwealth v. MacSherry, 371 Pa. Super. 164, 166, 537 A.2d 871 (1988).
[ 379 Pa. Super. Page 570]
At oral argument before this Court and by letter several days following oral argument before this Court, however, counsel for appellant offered the following explanation for the apparently untimely filed post-verdict motion:
[A]lthough the Motion for New trial was filed on January 15, 1987, for some reason, the Motion was not transferred from the Judge's chambers to the clerk's office until the 26th of January, 1987.
The Motion was presented to Judge Robert L. Walker in Motions Court and was listed for the next Argument List, which is typical in this jurisdiction. Therefore, no Order was issued by the Court listing the case.
(Letter of appellant's counsel, 9/13/88.)
Counsel's claim amounts to an assertion that he "filed" the motion by presenting it to the judge in his chambers. This does not constitute a "filing" as we admonished in Commonwealth v. ...