530 A.2d 469 | Pa. Super. Ct. | 1987
Lead Opinion
This is an appeal from the order of the Court of Common Pleas of Allegheny County denying the post-trial motions of the appellant, Rose Mercalde, which, in effect, activated the judgment of sentence suspended pending the disposition of said motions. We reverse.
The record indicates that the appellant appealed the summary conviction and fine imposed by a district justice for harassment to Common Pleas Court. A non-jury trial took place on May 15, 1986. The following day, the trial court mailed to the appellant its order, which reads:
Although the appellant did pursue such a claim in her pro se brief to this Court, and is not responded to by the trial court in its opinion to us, we note its existence in the course of reconstructing the facts at bar, the ability of the trial court to remedy the procedural errors, and its failure to do so.
The procedural shortcomings in the case at bar are identical to those present in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by Popovich, J., with Montgomery, J. Concurring in Result and Brosky, J. Dissenting).
Accordingly, for the reasons set forth in Ragoli, which are responsive to this case as well, we reverse the order of
Order reversed and case remanded for proceedings not inconsistent with the opinion herein written.
. The relevant portion of the “Notice of Appeal From Summary Conviction" reads:
11. That the within adjudication of guilt against the Defendant was in violation of her constitutional rights under the Constitution of the United States of America, Commonwealth of Pennsylvania, as well as her rights under the Pennsylvania Rules of Criminal Procedure and include:
a. The Defendant was denied her right to argue in mitigation of sentence at time of sentencing and was adjudicated guilty by mail.
b. The Defendant was denied her right to argue at the demurrer stage;
c. The Defendant was denied her right to make a final argument;
d. The Defendant was denied her right to challenge the sufficiency of the evidence;
e. The Defendant was denied her right to be present at time of sentencing;
f. The Defendant was denied her right to make a statement at time of sentencing;
g. The Defendant was denied her right to present information to the Court at time of sentencing;
h. Pennsylvania Rule of Criminal Procedure Rule 63(e) was violated in that the verdict and sentence, if any, were not announced in open court immediately upon the conclusion of the trial.
i. The Defendant was improperly adjudicated guilty of the offense of Harassment where proof was not beyond a reasonable doubt.
These same claims appear at pages 5 — 6 of the appellant’s pro se brief to us.
. We point out the persistent confusion generated by the simultaneous entry of a judgment of sentence and its suspension pending the filing and disposition of post-trial motions.
The better practice, as discussed fully in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by Popovich, J., with Montgomery, J. Concurring in Result and Brosky, J. Dissenting), would be to enter a judgment of sentence after post-trial motions, if any are submitted, are disposed of by the trial court.
Concurrence in Part
concurring and dissenting:
I agree with my learned colleagues of the majority that the procedure followed by the trial court to announce its verdict was defective and should be discouraged.
However, it is difficult to perceive that this procedural defect was prejudicial to any rights of the defendant. Therefore, it does not require that the guilty verdict be vacated. Cf. Pa.R.Crim.P. 90.
Although appellant’s pro se brief is difficult to comprehend, my own review of the record suggests that the evidence was sufficient to support the trial court’s verdict and that there was no error which compels the granting of a new trial.
Appellant also argues in her brief that she was denied the right to be heard before sentence was imposed. The record confirms that she is correct. Because the sentence was imposed by mail simultaneously with the finding of guilt, there was no separate sentencing hearing. Consequently, appellant did not have an opportunity to be heard before she was sentenced. Because this irregularity has been
. Appellant was never told that a petition to modify the sentence was necessary to preserve sentencing issues for appellate review. Moreover, the issue of the right to be heard goes to the legality of the sentencing procedure.
