*3 MONTGOMERY, BROSKY, Before POPOVICH JJ.
POPOVICH, Judgе: This is an from an order of the Court of Common Allegheny adjudging appellant, Pleas of County Joseph Ragoli, trespass. of defiant We reverse. guilty facts, in light
The most to the viewed favorable verdict- winner, that, approximately p.m. reveal 8:43 on the 20th March, 1984, University Pittsburgh Security Officer M. Fink received a call from a employee, Albert fellow Harris, person Officer that an unauthorized had seen Hall, entеring University building Benalum located in the section the City. Oakland scene, Fink on
When Officer arrived Officer Harris in the lobby speaking appellant. Ragoli Mr. was he had any responded asked whether identification. He negative. address, he questioned When was as to his he none; told the he officers had on the street.” “[h]e live[d] phone check book disclosed that the appellant was not listed.
After thе told officers that he would have building leave the it public, because was closed to the he so, belligerent refused to do became stated he did not premises have to exit the since he was allowed However, building. his efforts to the legitimacy establish presence by phone his means of a call “professor” to a proved unsuccessful when no one answered his call. With- out the appellant’s ability prove that he was licensed student, on the premises, member, either as a faculty staff empowered member or someone to authorize entry, he was arrested later charged by complaint with defiant *4 trespass. See Pa.R.Crim.P. 65.
The appellant’s sentence before the district magis (fine $140.00) trate and costs totalling appealed, was as 63(b)(3), permitted by Pa.R.Crim.P. to the Court of Common facts, rеcounted, Pleas “for a The just trial de novo.” as presented were at a bench trial on conducted November verdict, however, The 1985. court’s was not entered until following day, typed the and then it came in the form of a appellant “adjudged Guilty which the
order 1 In the 3503(b)(l)(i) charged____” of as same offense CC order, appellant that the was “sentenced to court wrote imposed by Issuing Authority.” the Finе and Costs pay to, alia, suspension made reference inter The order also imposed filing disposition pending the sentence appellant, for the addi- motions.2 Counsel permitted the the court Commonwealth to 1. At the de novo charge against regarding brought present an identical evidence University Pittsburgh SA appellant by docketed at No. 799 of However, 9,May on 1984. the record is This incidеnt occurred 1984. indicating any was ever found evidence devoid (Record charge imposed. was ever guilty of this sentence Further, 2) appellant’s charge notice lists at No. No. (Record being only which No. as the one contested. SA 777 Thus, 1) at No. SA 777 review is limited to offense referred to our of 1984. form, order, appears to be a standardized reads: The entire *5 time, At point this procedure we would out that the employed by the imposing court below prior disposition sentence to the post-ver- dict motions is in practice contravention of settled this area of law. See Comment to Pa.R.Crim.P. which reads: Post-verdict motions must be sentencing, decided before because the court, lies from the final order of the trial ordinarily which Code, 102, 722, includes sentence. See Judicial 42 Pa.C.S. §§ also, 5105(a). Bolden, A.2d 90 himself, filed tion February order dated denied were *6 order February of the 25th was motion for reconsideration it filed, record does not disclose whether was ever but the the trial court. disposed by notice of appellant’s of record the The next document taken from the order the trial court being It was appeal. 8, 25, “reimposing” the November February 1986 dated Sentence”, during which was “Judgment suspended 1985 appeal The remand- ruling on motions. post-verdict the grant appellant’s of the coun- Superior the Court’s ed retained. New Jurisdiction was petition sel’s to withdraw. appeal sufficiency the and the raised appointed counsel was error in exclud- alleged the trial court’s evidence deposition evidence. ing appellant’s merits of the can аddress the
Before we
must,
determine
claims,
right
obligation,
is our
we
as
us for review.
See
properly
the case is
before
whether
Lewis,
198,
Next, from the appellant’s appeal we observe finding of entitled him to a full magistrate’s guilty district *7 rights, of first enunciated this Court panoply Koch, in 431 A.2d (1981) appeals summary to to of convictions to apply Pleas for a de trial. also the Court of Common novo (“The Rules of Criminal Proce- Comment to Pa.R.Crim.P. generally [summary are to these applicable judgment] dure into an of one’s explanatiоn This translates proceedings.”). 1123,3 in rights as set forth Pa.R.Crim.P. which post-verdict part: It reads in relevant Rule 1123. Post-Verdict Motions (a) (10) days finding guilt, a the defendant Within ten after right motions for a new trial and in shall have the to file written may judgment. Only grounds be which arrest of those considered judge, pre-trial proceedings at unless the trial were raised in or shown, Argument, hearing, upon a or both cause allows otherwise. filed, promрtly and heard after such motions are shall be scheduled grounds only relied in the those issues raised and the particularity may specifically are stated and with motions that grounds require argued If the asserted do not a tran- or heard. hearing post-verdict filing, argument, script, nor neither the delayed transcript for lack of a of the notes of motions shall be testimony. record, (b) post-verdict agrees motions If the defendant on the may orally defendant at the conclusion of the trial. The be made (10) voluntarily day period on the record also within the ten understandingly filing Prior waive the motions. shall, judge pursuant acceptance trial to of such waiver the Rule, (c) paragraph advise the defendant on the record of this dealing we are are even more extant because in this case degree of the third an of a misdemeanor with ($2,500) fine upon conviction potential with it a carried Koch, supra. Addition- (one year).4 See imprisonment (“Sentencing Pro- compliance with Pa.R.Crim.P. ally, Nonetheless, Rule required. neither ceeding”) was despite provisions to the trial court adhered indicating otherwise. Rules requirements those example,
For Rule 1405 itemizes which must sentencing; namely: mеt the time set for sentencing, judge shall:
At the time to make (a) opportunity the defendant afford counsel for in his behalf and afford both own statement and informa- argument to opportunity present an parties sentencing; relative to tion for the sentence
(b) on the record the reasons state imposed; the record:
(c) the defendant on advise right appeal and the time within (1) of his and, he is of his indigent, if right he exercise such pauperis provided and to be right proceed forma counsel; free propri- file
(2) right challenging of the (and, plea guilty, of a case of the sentence ety motion to of a plea denial validity plea); withdraw limit within which such (10) day ten time *8 filed; must be
motions appeal any preclude raising waiving post-verdict on motions shall of might been in such motions. have raisеd issues which guilt, judge (c) finding advise the Upon of the trial shall the on the record: defendant right (1) right and of the to of to file filing and on counsel in the such motions assistance of therein; any issues raised in (2) he do so as set forth time which of the within (a); paragraph and may be (3) only grounds such motions contained in appeal. raised on 3503(b)(l)(i), 1101 & 1104. §§ See 18 Pa.C.S. by represented to be is entitled (4) that the defendant motions; and such litigаting and preparing in counsel raised in this court be raised (5) only claims appeal; on sentencing proceedings that a record
(d) require as transcribed so that it can be preserved and made be include: The record shall needed. pre-sen- a made at
(1) any stipulation record of conference; tence sentencing pro- entire account of the
(2) a verbatim ceeding. i.e., point, one salient Rule discloses reading of the sentencing pro- respect to occurs
everything
court.
open
means in
this
record;
ceeding must be
not
judicial system
into our
has
woven
a
practice
Such
question
to
opportunity
defendant
afford the
only to
advantage
courts the
appellate
it avails
but
proceedings,
(be
pre-trial,
related to
they
еrror
claims of
any
assess
record
fully developed
sentencing)
from
post-trial
See Common-
needless
remand.
with a
dispenses
Rivera,
(en
242,
Criminal Procedure. v. Vorhauer 395, (1983) (Rules of Civil Proce- dure). cannot and will not do in the face of This we requirements imposed designated procedural specifically Picker, supra; Rule judge. a Comment to 1405. not at present The fact thаt the was sentencing none he not at the since and we know was court, open obligation did not diminish held see it that record was created that tracked the to to a court created of Criminal Procedure.5 record was with Rules trial, and done so with trial counsel’s properly to the regard presence.6 his We see no reason to to client’s object failure not in the same sentencing proceeded could have why (a fashion, misde given noncapital nature of offense meanor). 10A P.L.E. Criminal Law 502 at it is At § written: cases; In non-capital felo- waiver.
Non-capital felony cases, cases, right has a to capital as in the defendant ny However, in proceedings. all present stages at be right the defendant waive his to be non-capital cases present. criminal matters the defendant’s ability
This to conduct 1117(a), has codified Pa.R.Crim.P. absence provides: analogize appeals a would this to a situation where defendant
5. We ruling magistrate’s Pleas Court for a adverse to Common from district seriously argued a defendant's trial de It cannot be novo. prosecution to a conviction appear to at trial would entitle the failure proving against of its its case defendant in the absence documentary prove production testimonial evidence and/or words, beyond the trial court guilt a reasonable doubt. In other finding guilty required on record evidence to base its would court, merely open not enter a dismissal of presented in Kyle, v. appear. for his failure defendant’s 453 A.2d Diehl, 107 A.2d Cf. Commonwealth 378 Pa. ("... noncapital felony competent case where ... counsel in a present request that his client and he makes no for the defendant jury, during giving present of additional instructions also be voluntary waiver of his will be construed as the defendant’s absence present.”). right *10 (a) shall at the present arraignment, The defendant stage including impanelling of the trial the of the every verdict, imposition and the return of the and at the jury sentence, provided as otherwise this rule. except by preclude shall not The defendant’s absence without cause of the including with the trial return proceeding verdict.
Therefore, preceding, based on the the defendant’s absten- like the should not have sentencing, tion from the court from on with the case. impaired carrying below occurred, procedural underpinnings If this had neces- imposing to thе order sentence would sary validate have entering met and the order sentence would have been absence, however, In its have a legitimized. we by by not remedied a sentence issued order of court vacuum in rules. circumvention established
Likewise,
in the
appears
appel
the sentence which
Form 129”
it
left
unspecified;
lant’s case on “Civ Div
is
judgment
“Issuing
the trial court to
Authori
by
i.e.,
is
ty”,
magistratе,
impose.
unprece
the district
This
in
clear
our
light
language by
Supreme
dented
Court
Riggins,
in
474 Pa.
Instantly,
delegated,
may say,
below
its
42
statutorily
obligation
impose
created
sentence.
(“In determining
imposed
Pa.C.S.
9721
the sentence to be
§
shall
...
court
... consider
alternatives,
* * * (3)
impose
concurrently:
them
Par-
consecutively
* * * (5)
added));
(Emphasis
tial confinement.
A fine.”
cf.
Erb,
Commonwealth v.
Pa.Super.
What we 300 445, 938, 446-47, 446 A.2d 939 is instruc Pa.Super. to us here: tive in repeatedly
This Court has held an from a summary judgment pleas, to the court of common pleas of common court should either judgment Common- As in “guilty” guilty.” or “not we wrote Carter, wealth v. 401, 403, Pa.Superior 230 Ct. 326 A.2d 530, (1974): 531 judgment affirming justice peace, dismiss-
ing
appeal,
sustaining
appeal,
is not suffi-
Alton,
cient and
be reversed.
will
Common-
168,
(1966);
209
Furthermore, guilt an order en- adjudicating tered, though it implicit even is the lower court’s and opinion actions that the court considered the evidence Commonwealth v. Car- supportive finding guilt. of a ter, supra; Wenyon, Commonwealth v. Pa.Superior Ct. Gula, bar,
At consistent precepts with referred to we find that adjudging the trial court’s the appellant guilty8 imposing “Issuing sentence via the Authority” are contrary accepted manner and of accomplish- method both, ing developed as has in this Commonwealth. Accordingly, we reverse thе order of the trial court dated November 19859 and remand with directions trial court enter a finding guilty or not in accord guilty accepted practice Commonwealth, and, ance with in this if the verdict is guilty, impose sentence as more fully detailed body opinion. this Jurisdiction not retained by this Court.
MONTGOMERY, J., concurs in the result.
BROSKY, J.,
dissenting
files a
statement.
*12
jury
8.
In a
by
the verdict is to be announced
the foreman in
open court. See 10A P.L.E. Criminal Law § 751. We see no reason
why
procedure
by
the same
cannot be followed
the trial court in a de
sentence,
magistrate’s judgment
novo trial from a district
of
allowed
by Pa.R.Crim.P.
stenog-
86. The verdict can be recorded
the court
rapher
formally
judgment
and later
by "being spread
reduced to
on
rights
the record.”
procedural
This will assure that one’s
followed, and,
process
disputed, subject
substantive due
are
if
appeal
attack on
post-verdict
preserv-
after the submission of
ing
appellate
the claim for
review.
earlier,
appellant’s
perfected
9. As made mention of
trial counsel
Judgment
an
November,
"from the
day
of Sentence entered on the 8th
(Record
9)
1985".
No.
The fact that our decision con-
court”,
8th,
cludes that the "order of
which was issued on November
ruling proffered
flawed doеs not detract from the fact that the central
specifically
for
judgment/order
our review relates
to the said
November 8th.
BROSKY, Judge, dissenting:
majority opinion
I
in the
based
join
cannot
Supreme
Wiegand Wiegand,
of our
Court
decision
(1975),
holding
For dissent. the above STORE, DEE DEPARTMENT JAY INC. v. CO., Appellant. SOUTH PENN GAS Superior Pennsylvania. Court
Argued 1987. Jan. April Filed 1987. boilerplate style appeal; Appellant on couches his first issue however, specificity allegations motion meet the in his Holmes, in Commonwealth v. threshold of our decision A.2d