Commonwealth v. Bailey , 368 Pa. Super. 618 ( 1987 )

OLSZEWSKI, Judge,

concurring:

Given the decision by this Court in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), I am duty bound to join in the Opinion by Judge Wieand. I write separately merely to restate my position on the procedural issue raised by Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

It is my belief that where an appellant fails to comply with Pa.R.Civ.P. 2119(f), we may, as an exercise of our discretionary power, decline to excuse the procedural violation. Where, as here, the waiver of a procedural violation results in a prohibited post hoc determination of the merits of a discretionary aspect of sentencing, see Commonwealth v. Tuladziecki, 513 Pa. at 511, 522 A.2d at 19, we should not take it upon ourselves to determine whether there exists a substantial question regarding a discretionary aspect of sentencing. See Commonwealth v. Rivera, 365 Pa.Super. 361, 363 n. 1, 529 A.2d 1099, 1100 n. 1 (1987) (Opinion by Olszewski, J.). Nonetheless, because this position has not been accepted by the Court, I agree with Judge Wieand that we must disallow this appeal.