*1 addition, Zewe’s general brief contains reference to alleged improper might where the statement be located.7 For above, the reasons set out we find Zewe has waived his right rеview on this issue. appellate of sentence Judgment affirmed. ELLIOTT, J.,
FORD files a Concurring Statement. ELLIOTT, Judge, FORD concurring: I join opinion I majority, although appel find lant’s equal protection proсess and due issues to be compel ling. As I believe that questions presented the Constitutional by appellant are controlled this court’s decision in Com Trill, monwealth v. at 374 authority this court has no to overturn or reconsider that decision, and therefore appellant’s arguments must await re supreme view our court.
Submitted 1995. July Filed 2119(e) 7. Pa.R.A.P. states: applicable Where under the law an issue is not reviewable on below, forth, preserved argument unless raised or must set thereto, immediate conneсtion therewith or in a footnote either a specific page pages cross reference to the or of the statement of the relating required pursu- case which set forth the information thereto 2117(c) (statement place raising preservation ant to Rule
issues), substantially the same information. *2 Defender, Machen, for Pittsburgh, Deputy Michael Asst. appellant. Com., Pittsburgh, for Atty., Dist. Bradley, A. Asst.
Scott appellee. Sole, Brosky, JJ. Kelly,
Before Del KELLY, Judge: we аsked to whether this are determine for a pleas may appellant’s appeal dismiss an
court common a entry of sentence judgment trial de novo hold a We district convictiоn. justice deter- dismiss the but must merely trial court cannot a mine and enter verdict the record. facts offense hold one’s before guilty plea a trial novo in does not preclude we rеverse the pleas. Accordingly, of common and remand for dismissing appellant’s court’s order opinion. this consistent with proceedings this are history facts procedural The relevant Richard February appellant, as On follows. *3 Toner, The appellant arrested for drunkenness. public was March 1994. Justice on Boyle was before District brought the and pled guilty the to offensе hearing, At the (90) incarceration, fine or days no ninety was sentenced costs. filed a notice of appeal
The appellant County the Common Allegheny conviction with heard on appeal Pleas1 1994. The was April on following exchange by Judge Doyle. Pleas The Common took the place hearing:2 pled He Why guilty.
THE are here? COURT: summary proceeding, law in a 1. When an authorized municipal of a which including prosecution for violation ordinance pay a provides imprisonment upon failure to for conviction fine, perfected by filing within appeal shall be a notice thirty days final order from which the after the conviction other pleas appearing in the court of common for is taken and 86(a). trial novo. Pa.R.Crim.P. filed Novеmber 2. We court’s note written hearing. what was said at the June appears to contradict appellant guilty. opinion that the court found the The written indicates However, transcript mаde a reveals that court never determina- rather, culpability; tion of "dismissed” appellant pled guilty District to the offense before because Boyle March Justice jail sen- ninety-day appealing He is THE OFFICER: we had the court and then at district pled guilty He tence. ninety days. in the he filed for the sentencing, then verdict, ninety days. guilty Not the sentence? is over the debate THE COURT: THE Yes. OFFICER: understand that? you
THE Do COURT: Yes, sir. to the offense. pled guilty THE COURT: me to appeal told magistrate THE DEFENDANT: The here. bring it down And, you if Well, clearly, you are here. record, it, is, you pled guilty public there it want to read wеre sentenced. you ninety days. He was sentenced MR. ROSEN: to appeal told me why THE DEFENDANT: That’s she here, it. it down bring it. She said THE Well— COURT: appeal. to an had a
THE She said OFFICER: have, she sen- THE That’s all COURT: I didn’t. ninety days. tenced I here— brought it down day THE DEFENDANT: That him. it to THE COURT: Show area. highlighted In the yellow THE CLERK: language. highlighted See the COURT: *4 in ninety days you got pled guilty; MS. ROSEN: jail. about this? like to do you
What would Judge (Discussion the record between at sidebar off held Rosen.) Doyle and Ms. at all? jail on this Have been ROSEN:
MS. No, ma’am. DEFENDANT: else? anything Do have THE COURT: No, sir. have Now The is dismissed. Court. Superior take an days thirty 2-4). ap Court “dismissed” the Accordingly, the Common Pleаs timely a of matter. This refusing de novo review peal, appeal followed.3 for our issues
On raises review: ERR IN DISMISSING DID THE LOWER COURT
I. A MAGIS- DISTRICT THE APPEAL FROM IN SUMMARY CONVIC- TRATE’S JUDGMENT TION PROCEEDINGS? TO ERR IN FAILING DID THE LOWER COURT
II. THE AP- REVIEW OF A DE NOVO CONDUCT SUM- PEAL A MAGISTRATE’S FROM DISTRICT A ENTERED UPON GUILTY MARY JUDGMENT PLEA? at 3.
Appellant’s Brief first contention that agree We with appellant’s appeal “dismissal” of the Common Pleas Court’s improper. conviction was summary a challenging propriety method of appropriate conviction, by plea, is after hearing whether Pleas рursuant Court of Common timely appeal a to the 86.[4] must be taken within Such an Pa.R.Crim.P. perfected, sentencing and when thirty days 86(g) Pleas. Rule the Court of Common heard de novo an is the exclusive means provides that such conviction. challenging Smirga, Pa.Super. Commonwealth v. Bassion, (quoting Commonwealth 231-32 (1990)). 564, 567, “This summary judg- from
has held repeatedly brief; responsive through corre- did not file a 3. The Commоnwealth opined February spondence dated position appellant's was correct. (f). 86(a), Pa.R.Crim.P. See
35
of common
pleas,
judgment
to the court of common
ment
Common-
guilty’.”
or ‘not
‘guilty’
court should be either
pleas
933,
390, 402,
939
v.
524 A.2d
Ragoli,
wealth
Pa.Super.
362
Vianello,
148, 150,
v.
Commonwealth
(1987);
Pa.Super.
337
Morgenthaler,
v.
(1984);
320
Commonwealth
525,
A.2d
526
486
Common-
1091,
(1983);
120, 122,
1092
466 A.2d
Pa.Super.
448,
668,
v.
446,
453 A.2d
669
Kyle,
wealth
307
Pa.Super.
Gula,
445, 446,
446
Commonweаlth v.
(1982);
Pa.Super.
300
Carter,
v.
(1982);
Commonwealth
938,
Pa.Super.
230
A.2d
939
v.
Commonwealth
(1974);
401, 403,
326 A.2d
530-31
(1953). “A
Miller,
168, 170,
96 A.2d
154
Pa.Super.
173
peace, dismissing the
affirming
judgment
will be
is not sufficient and
sustaining
390, 524 A.2d
Ragoli, supra,
Commonwealth v.
at
reversed.”
120, 466 A.2d
supra,
v.
Morgenthaler,
933;
at
Commonwealth
Gula,
938;
v.
at
446 A.2d
supra,
Commonwealth
1091;
Carter,
530;
Com-
401, 326 A.2d
supra, at
v.
Commonwealth
Miller,
153. “The trial
monwealth v.
at
verdict;
it
render a
...
the facts and
court
must determine
v. Vianel
Commonweаlth
merely
appeal.”
dismiss the
cannot
v.
lo,
Commonwealth
supra
(quoting
at
Instantly,
record reveals that the
of fact. The
making findings
without
27, 1994
facts at the June
any
trial court never considered
Furthermore,
conclusion that
the trial court’s
hearing.
...
“absent
justice’s
verdict
“refused to disturb”
(Trial
Opinion
is unsubstantiated.
any viable defense”
1).
viable
“any
not forward
at
could
11/21/94
the facts at the
court did not examine
defense” because the
the trial court
hearing. Acсordingly,
verdict,”
erred
“must determine
the court
and render
facts
factual determinations. See Commonwealth
failing
to make
Vianello,
148,
Moreover, with second agree appellant’s we a de novo refusing to conduct the trial court erred right effectively denying appellant’s the of the appeal, review summary offense. to guilty plea his conviction to to right offense has the summary to a pleads guilty One who 86. See Common pursuant to Pa.R.Crim.P. take Bassion, at n. 3. supra v. at n. wealth failed to the trial court hearing At on June the the appellant the а de novo review of conduct At the com- to offense. guilty pled previously “[W]hy judge inquired: the trial hearing, mencement of the 2). (N.T. In at pled guilty.” are we here? He 6/27/94 addition, exchange place: took offense. guilty pled COURT: me told magistrate it here. bring
it and down And, Well, if clearly, are here. record, is, it, pled guilty public want to read there sentenced. you were 2). at in its November guilty withdrawal of the proper that “absent a
court stated sentence of the ... to disturb verdict and we refused plea with- Justice,” court considered District review. de novo guilty plea prerequisite of his drawal Bassion, Court’s decision this light trial court that the conclude his appellant’s guilty plea precluded held that the improperly to de novo review. Based the trial court’s order of June upon foregoing, Toner’s dismissing appellant conviction, case with a directive is reversed and the remanded novo, to the trial court to conduct a trial de make detеrmina- fact, record. tions enter a verdict reversed; remanded. Judgment sentence case Jurisdic- relinquished. tion SOLE, J.,
DEL filed a statement. concurring *7 SOLE, DEL Judge, concurring.
I join Opinion by my Kelly. authored colleague, Judge I wish to support analysis. filing further his оf an conviction and sentence a district novo, a trial justice requires even when the conviction is the result of a plea. Commonwealth, v. Tar- Department Transportation (1993), 533 Pa.
nopolski,
Supreme