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filed: June 16, 1989.


Appeal From Judgment of Sentence March 3, 1987 In Court of Common Pleas, Criminal Division, Erie County at Nos. 1173 and 1175 of 1982.


Bruce L. Getsinger, Erie, for appellant.

William A. Dopierala, Assistant District Attorney, Erie, for Com., appellee.

Cavanaugh, Del Sole and Montgomery, JJ. Montgomery, J., concurs in the result. Del Sole, J., files a concurring opinion.

Author: Cavanaugh

[ 385 Pa. Super. Page 344]

This is a direct appeal from judgment of sentence. Defendant John Laskaris was convicted at a jury trial on two separate burglary counts. The charges stem from burglaries which occurred at the Blue Max Restaurant and the offices of U.S. Air, both located at Erie International Airport, in May of 1980. Defendant was sentenced on these charges to two prison terms of ten to twenty years to be served consecutively to each other and consecutively to other sentences defendant was serving for prior convictions.

Defendant makes several allegations of error by the lower court and also requests that we allow him to appeal the discretionary aspects of his sentence. However, we must first address the Commonwealth's contention that defendant has failed to preserve any of these issues for appeal due to his failure to timely file post-trial motions.


Trial on the charges in question was conducted before the Honorable William E. Pfadt, P.J., with the jury returning guilty verdicts as to both counts of burglary on September 19, 1986. Defense counsel presented a motion for new trial and/or arrest of judgment to the trial judge by leaving said

[ 385 Pa. Super. Page 345]

    motion in the judge's chambers on September 29, 1986. This motion was not filed with the clerk of courts until the following day. Pennsylvania Rule of Criminal Procedure (Pa.R.Crim.P.) 1123(a) provides, in pertinent part, that, "within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment." The Commonwealth argues that here, where the written motion was filed with the Clerk of Courts one day beyond the ten-day period set forth in Rule 1123(a), the allegations of error made in said motion are not preserved for appellate review.

Defendant explains that at the time this motion was submitted the standard practice of the Erie County Clerk of Courts was to refuse documents for filing which did not contain an "Order of Court" with a judge's signature. He attaches to his brief an affidavit from Patrick Fetzner, Deputy Clerk of Courts, attesting to this practice.*fn1 Defendant's motion for a new trial and/or arrest of judgment did not include an order by the court on September 29, 1986 and, therefore, would not have been accepted for filing by the Erie County Clerk of Courts on that date. He labels this a "breakdown in the court's operation" and claims that his failure to timely file post-trial motions is thereby excused.

After examining the record, and considering the particular circumstances involved, we must disagree with the position

[ 385 Pa. Super. Page 346]

    of the Commonwealth that defendant's objections have all been waived as untimely.

It is true that we have previously held that leaving motions in a judge's chambers, or handing them to a judge in the courtroom, does not constitute filing of such motions. See, Commonwealth v. Nixon, 311 Pa. Super. 450, 457 A.2d 972 (1983); Commonwealth v. Lynch, 304 Pa. Super. 248, 450 A.2d 664 (1982). Documents in criminal matters must be filed with the Clerk of Courts, as required by 42 Pa.C.S.A. ยง 2756(a)(1). However, we find the instant matter to be distinguishable from Nixon and Lynch, supra. In those previous cases motions had not been timely filed because of defense counsel's failure to comply with the Rules of Criminal Procedure. In the case at bar, had defense counsel attempted to file post-trial motions on September 29, 1986, the Erie County Clerk of Courts would have refused to accept them because the motions did not include an order signed by a judge. This local practice was responsible for the delay in defendant's motions being filed, rather than defense counsel's failure to comply with our Rules of Criminal Procedure.

Our Supreme Court has held that local procedural rules cannot be construed so as to be inconsistent with prevailing statewide rules. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986); See also Pa.R.Crim.P. 6.*fn2 Here

[ 385 Pa. Super. Page 347]

    a local practice, which apparently has not even been given the status of a procedural rule since it has not been cited as such by either party, placed an additional burden upon a defendant who sought to file post-trial motions, or any motions, with the court. This additional burden was not contemplated by our statewide procedural rules, and we consequently find this local practice to be impermissible. See Pa.R.Crim.P. 6.

It appears from the record that defendant's motions for new trial and for an arrest of judgment could have been filed in a timely fashion on September 29, 1986 had the clerk of courts properly accepted them, and that the motions were in fact delivered to Pfadt, P.J. on that day.*fn3 Therefore, we shall treat the issues raised in defendant's post-trial motions as being timely raised and preserved for appellate review. In so doing, we will follow the reasoning of our Supreme Court enunciated in Feingold, supra:

This Court's approach to the enforcement of procedural rules, whether local or state-wide, is dictated by the facts and circumstances ...

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