decided: December 23, 1988.
HORACE EGELSTON, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Commonwealth of Pennsylvania v. Horace Egelston, No. S.A. No. 164-87.
Leo M. Pall, for appellant.
Paul R. Bartolacci, for appellee.
President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.
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Horace Egelston (Appellant) has appealed from an order of the Court of Common Pleas of Delaware County finding him guilty on three citations issued by Upper
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Darby Township (Township) and imposing a $900.00 fine and a ninety-day jail sentence. Because of procedural improprieties, we are required to vacate the judgment of sentence and remand to the trial court to dispose of Appellant's post-verdict motions.
The Township Health Officer issued citations numbered C22569, C22578 and C22579*fn1 to Appellant on August 7, August 13 and August 12, 1986, for violations of Section 3.01 of Ordinance No. 2295 of the Township of Upper Darby.*fn2 Appellant was found guilty of these violations by a district justice and filed a timely appeal to common pleas court. A hearing de novo on the charges was held August 3, 1987. The matter was then continued to August 28, 1987 so that counsel could file briefs on the subject of Appellant's contention that the Township ordinance was unconstitutionally vague.*fn3 At the August 28 hearing, the court entertained brief argument on the constitutional issue and then pronounced Appellant guilty on each of the three citations. The court advised Appellant of his right to file post-verdict motions within ten days in accordance with the terms of Pa. R. Crim. P. 1123 (Rule 1123), but nonetheless proceeded to enter a sentence it termed "conditional." (Notes of Testimony [N.T.] of August 28, 1987, at 13). Its written order, dated August 28, 1987, provided (unconditionally)
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for the maximum fine of $300.00 plus costs for each violation, in addition to ninety days in jail to be served if Appellant did not clean up his property within ninety days.
Thereafter, on September 3, 1987, Appellant filed post-verdict motions for a new trial, in arrest of judgment, and for reconsideration of the sentence. No action was taken on these motions*fn4 and on September 25, 1987, Appellant filed a notice of appeal to this Court from the August 28 order of sentence.
It is clear that Rule 1123*fn5 is applicable to appeals to common pleas courts from convictions by a district justice
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for summary offenses. See Commonwealth v. Koch, 288 Pa. Superior Ct. 290, 431 A.2d 1052 (1981). The Koch court succinctly summarized the purposes to be served by filing post-verdict motions: "(1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review." Id. at 295, 431 A.2d at 1055 (citation omitted).
In a case which is factually similar to the instant matter,*fn6 the Superior Court has held that it was improper
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for the trial court to impose a judgment of sentence before either the filing of the appellant's post-verdict motions and that court's ruling thereon, or the effective waiver of the appellant's right to do so after having been advised of his rights by the trial court on the record as required by Rule 1123. Commonwealth v. Johnston, 292 Pa. Superior Ct. 224, 437 A.2d 16 (1981).
In Commonwealth v. Straff, 295 Pa. Superior Ct. 205, 207 n.3, 441 A.2d 421, 422 n.3 (1982), the court noted: "It is axiomatic that post-verdict motions must be disposed of before sentencing," citing Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975) (emphasis in original). See also Commonwealth v. Aldrete, 303 Pa. Superior Ct. 398, 400, 449 A.2d 747, 748 (1982): " Koch and its progeny hold that where post-verdict motions have not been filed because sentencing was followed hard upon the heels of the findings of guilt the proper course for this Court to follow is to vacate the judgment of sentence and remand the case . . . ." (In Aldrete, as here, the appellant had filed "motions in the nature of post-verdict motions although they actually came after the entry of the court's judgment." Id.)
On the basis of the foregoing authorities, we conclude that we must vacate the order of sentence here and remand for the trial court to dispose of Appellant's post-verdict motions.
And Now, this 23rd day of December, 1988, the order of sentence of the Court of Common Pleas of Delaware County is hereby vacated. The Chief Clerk is directed to remand the record to said court within ten days of the entry of this order. Upon remand, the court shall dispose of Appellant's post-verdict motions within sixty (60) days of the entry of this order. In the event said motions are denied, the court shall immediately recertify
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the record to this Court, which shall retain jurisdiction. In the event the trial court grants the post-verdict motions, the Appellant shall discontinue his appeal before this Court within ten (10) days of the entry of the trial court's order.
Judge MacPhail did not participate in the decision in this case.
Vacated and remanded.