COMMONWEALTH of Pennsylvania v. Robert BETHEL, Appellant
Superior Court of Pennsylvania
February 16, 1982
Petition for Allowance of Appeal Denied June 2, 1982
441 A.2d 1248
On July 15, 1980, the Court of Common Pleas of Chester County entered an Order sustaining preliminary objections to the appellant‘s complaint and dismissing the complaint against the appellees herein.
On July 22, 1980, the appellant filed a notice of appeal.
On July 29, 1980, the lower court (by Judge Pitt, who has since retired from the Bench), ordered the plaintiff to file a Statement of Matters Complained of, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Appellant has admittedly not complied with said order of July 29, 1980. “A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.”
Under these circumstances and on the basis of the record (or lack thereof) before us, effective appellate review is precluded. Matter of Harrison Square Ins., 470 Pa. 246, 251-52, 368 A.2d 285, 288 (1977).
Appeal dismissed.
Before SPAETH, POPOVICH and MONTGOMERY, JJ.
PER CURIAM:
Appellant, Robert Bethel, filed this interlocutory appeal contending that the lower court erred when it refused to dismiss the charges against him on double jeopardy grounds.1 We disagree and affirm the order of the lower court.
At 2:00 a. m. on May 6, 1980, Appellant and two other men entered the home of Sylvester Chester, brandishing a shotgun. They tied up Chester and the other residents of the house and robbed Chester. Appellant then asked Chester about a man named Wayne. Appellant struck Chester in the mouth with a gun and another man was somehow shot. At this point, the men asked for someone named Leo, whom they were trying to find. Appellant and one man then left the house with Chester and drove to a house at 1932 60th Street, the home of Gwendolyn Wright. They arrived around 4:00 a. m. but Wright would not let them in. They returned around 5:30 a. m. and again were refused admittance. Around 7:00 a. m. they returned to Wright‘s home, breaking in through a window. Wright called the police but the men left before they arrived. Appellant was arrested around 10:00 a. m. when he returned to Wright‘s house alone. Two days later, Appellant was arrested for the crimes committed in Chester‘s home.
All charges were consolidated for the preliminary hearing. Sometime afterwards, however, Bills No. 1916-1925 May Term, 1980 (committed in Chester‘s home) were listed for trial separately from Informations No. 2086-2090 May
Appellant first contends that all charges arose from the same criminal episode and thus his motion should have been granted under the principles set forth in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) and the codification of those principles in
Appellant argues that all of the above events had but one criminal objective--to find the man named Leo. This theory is not borne out by the facts. The robbery and
Appellant also argues that prosecution on the weapons charges (No. 1917 and No. 1918) is prohibited because the possession was continuous. Because Appellant did not raise this issue, either in his written motion or during the hearing before Judge Kubacki, it is waived. Commonwealth v. Cohen, 270 Pa.Super.Ct. 90, 410 A.2d 1264 (1979).
The lower court‘s denial of Appellant‘s motion is, therefore, affirmed and the case is remanded for appropriate proceedings. We do not retain jurisdiction.
SPAETH, J., files a concurring statement.
SPAETH, Judge, concurring:
I join in the majority‘s opinion, but the case has an unusual aspect that I believe should be mentioned.
Appellant was convicted and sentenced for criminal trespass (No. 2088), possession of an instrument of crime and an offensive weapon (No. 2090), and possession of a firearm on a public street (No. 2091). All of these charges arose out of the events that occurred in the Wright home. In his motion to dismiss, appellant argued that the charges arising out of the events that occurred in the Chester home, see majority slip op. at 1249 n. 2, should be dismissed under Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). This argument depended on the assertion that the events that
In his brief to us appellant argues that he should not be prosecuted on the possession charges arising out of the events that occurred in the Chester home, -i.e., possession of an instrument of crime (No. 1916), carrying a firearm on a public street without a license (No. 1917), and former convict not to own firearms (No. 1918)--because “the act of possession represents a continuous course of conduct.” Appellant‘s Brief at 20-21. Appellant did not make this argument in his motion to dismiss. However, in its brief the Commonwealth concedes that the argument has merit: “If the issue were preserved, the Commonwealth would agree that defendant‘s continuous possession of a weapon would not be subject to further prosecution. See United States v. Jones, 533 F.2d 1387 (6th Cir. 1976).” Appellee‘s Brief at 8.
In these circumstances I believe that it would be improper for the Commonwealth to attempt prosecution on the possession charges. It would also create needless litigation and delay. For if tried and convicted on those charges, appellant could in a PCHA proceeding assert trial counsel‘s ineffectiveness and have the convictions set aside.