461 A.2d 1305 | Pa. Super. Ct. | 1983
This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County on December 3, 1981.
Appellant was arrested on March 15, 1981 by an officer of the Philadelphia Police Department and subsequently charged by information with receiving stolen property
On appeal, appellant challenges the sufficiency of the Commonwealth’s evidence, arguing that there was inadequate proof that (1) he was in fact “operating” the subject vehicle at the time of his arrest; and (2) the vehicle was being operated without the consent of its “owner”.
Our review of the record leads us to the conclusion that we are required to vacate the judgment of sentence and remand the case to the lower court.
Instantly, appellant raises for our resolution an argument which was not advanced in his oral post-verdict motions.
. 18 Pa.C.S.A. § 3925.
. 18 Pa.C.S.A. § 3928.
. Contrary to representations made by appellant in his brief, no written post-verdict motions were filed with the lower court.
. 18 Pa.C.S.A. § 3928 reads in its entirety:
Unauthorized use of automobile and other vehicles
(a) Offense defined.—A person is guilty of a misdemeanor of the second degree, if he operates the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner.
(b) Defense.—It is a defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation had he known of it. (Emphasis supplied.)
. The oral presentation of a post-verdict motion is sufficient, for purposes of Pa.R.Crim.P. 1123, to preserve the matter raised in the
Appellant’s argument which was preserved for appellate review, viz. that the Commonwealth failed to prove that he was “operating” the vehicle in question, is patently frivolous. See generally Commonwealth v. Taylor, 237 Pa.Superior Ct. 212, 352 A.2d 137 (1975); Commonwealth v. Kloch, 230 Pa.Superior Ct. 563, 327 A.2d 375 (1974); Commonwealth v. Matsinger, 288 Pa.Superior Ct. 271, 431 A.2d 1043 (1981).
. In Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981), we ruled that the strictures of Rule 1123 apply with equal force to summary violations.
. We note that we address sua sponte the failure of the lower court to conduct a Rule 1123 colloquy. However, as we stated recently in Commonwealth v. Thomas, 305 Pa.Superior Ct. 158, 163 n. 7, 451 A.2d 470, 472 n. 7 (1982):
We need not now determine the effect, if any, of appellant’s failure to argue the failure of the trial court to conduct a Rule 1123 colloquy. That question remains undecided here, as it did in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). As we stated there:
*332 In the past, there has been some question with regard to this Court’s sua sponte review of the record to determine whether the lower court complied with Rule 1123(c). Several cases have held that the absence of a specific allegation by appellant that his waiver was unintelligent or involuntary precludes an independent review of the record. Commonwealth v. Tegano, 265 Pa.Super. 453, 402 A.2d 526 (1979); Commonwealth v. Smith, 258 Pa.Super. 148, 392 A.2d 727 (1978) ; Commonwealth v. Harmon, 267 Pa.Super. 224, 406 A.2d 775 (1979) .
However, another line of decisions mitigates the harshness of the automatic waiver rule by reasoning that if the record is devoid of an 1123 colloquy by the lower court then appellant cannot be found to have knowingly waived his rights thereunder. Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978); Commonwealth v. Steffish, 243 Pa.Super. 309, 365 A.2d 865 (1976).
Id., 288 Pa.Superior Ct. at 296-297, 431 A.2d at 1056.