Commonwealth v. Cathey

HOFFMAN, Judge,

dissenting:

I respectfully dissent. I would remand for the proper filing of post-verdict motions because the lower court failed to fully comply with Rule 1123(c), Pa.R.Crim.P.; 19 P.S. Appendix.

Rule 1123(c) provides: “Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of his right to file post-verdict motions and of his right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal.” In the instant case, the trial court failed to advise appellant that “only the grounds contained in such motions may be raised on appeal.” Appellant’s counsel filed written, boiler-plate, post-verdict motions in contravention of the rule of Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), that all post-verdict motions must be specific in nature. As a consequence, the Majority holds that appellant waived his right to present his Fourth Amendment contention to our Court.

I cannot agree with the Majority’s holding that the trial court “substantially complied” with the mandates of Rule 1123(c). The trial court failed to warn appellant and his counsel of the very rule that they ultimately violated: the rule that post-verdict motions must specifically raise the grounds to be reviewed by an appellate court. The Majority finds “substantial compliance” for three reasons. First, the Majority states that the trial court helped protect defendant’s appellate rights by emphasizing the necessity of making post-verdict motions in order to secure appellate review. Appellant heeded this advice and filed written post-verdict motions. Second, the Majority emphasizes that appellant discussed the procedure of filing post-verdict motions with his attorney. However, this discussion apparently offered appellant little protection because his counsel did not know the rule that only those grounds specifically raised in post-verdict motions may be raised on appeal. If the court had given the required Rule 1123(c)(3) instruction, perhaps either appellant or his counsel would have realized that boiler-plate post-verdict motions would be inadequate for purposes of appellate review. Finally, the Majority relies on the fact that boiler-plate motions were actually filed. However, appellant derived absolutely no protection from the filing of boiler-plate post-verdict motions. In short, appellant heeded every warning the lower court gave, but the Majority still finds a waiver of his invaluable appellate rights. Because the trial court failed to warn appellant of the very Rule 1123(c) requirement that undermines his appeal, I would remand for the proper filing of post-verdict motions.

SPAETH, J., joins in this Dissenting Opinion,