Commonwealth v. Erhart

Superior Court of Pennsylvania

Commonwealth v. Erhart

375 A.2d 342, 248 Pa. Super. 481, 1977 Pa. Super. LEXIS 1993

CourtSuperior Court of Pennsylvania

DecidedJune 29, 1977

Docket1734

StatusPublished

Cited by12 cases

This text of 375 A.2d 342 (Commonwealth v. Erhart) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth v. Erhart, 375 A.2d 342, 248 Pa. Super. 481, 1977 Pa. Super. LEXIS 1993 (Pa. Ct. App. 1977).

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VAN der VOORT, Judge:

The appellant, William C. Erhart, was charged with forgery and receiving stolen goods. Prior to trial, he moved for a dismissal of all charges, alleging a violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. He claimed he had not been brought to trial within the required 180 day period mandated by the Rule. The Commonwealth answered the motion, claiming that appellant could not be located after the complaint was filed and thus to be deemed “unavailable” within the meaning of Rule 1100.

The lower court denied the appellant’s dismissal motion. At trial on April 14, 1975, Erhart was convicted of both forgery and receiving stolen goods charges. Following conviction, the appellant’s attorney made an oral motion for a new trial and a motion in arrest of judgment. He was asked [483]*483by the trial judge if he was going to file a motion for a new trial. To this inquiry counsel replied, “I think it will be more in the nature of a motion for arrest of judgment. I don’t believe the defendant should come to trial in the first place, much less have a second trial”. The oral motion in arrest of judgment was argued then and there (counsel again arguing the Rule 1100 issue) and was denied by the court. No written post-trial motions for either a new trial or in arrest of judgment were ever filed.

The trial and post-trial motions in this case followed the decision of the Pennsylvania Supreme Court in Commonwealth v. Blair, 460 Pa. 31, N. 1, 331 A.2d 213, N. 1 (filed January 27, 1975), and we cannot therefore consider claims not raised in written post-trial motions. See Pennsylvania Rule of Criminal Procedure 1123(a); Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975). In view of the non-compliance by appellant with the requirements of Rule 1123 and the recent holdings of our Supreme Court, we cannot consider the Rule 1100 issue to have been adequately preserved for appellate review.

Affirmed.

HOFFMAN, J., files a concurring opinion in which CER-CONE and SPAETH, JJ., join. PRICE, J., files a concurring opinion in which JACOBS, J., joins. SPAETH, J., files a concurring opinion.

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VAN der VOORT, Judge:

The appellant, William C. Erhart, was charged with forgery and receiving stolen goods. Prior to trial, he moved for a dismissal of all charges, alleging a violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. He claimed he had not been brought to trial within the required 180 day period mandated by the Rule. The Commonwealth answered the motion, claiming that appellant could not be located after the complaint was filed and thus to be deemed “unavailable” within the meaning of Rule 1100.

The lower court denied the appellant’s dismissal motion. At trial on April 14, 1975, Erhart was convicted of both forgery and receiving stolen goods charges. Following conviction, the appellant’s attorney made an oral motion for a new trial and a motion in arrest of judgment. He was asked [483]*483by the trial judge if he was going to file a motion for a new trial. To this inquiry counsel replied, “I think it will be more in the nature of a motion for arrest of judgment. I don’t believe the defendant should come to trial in the first place, much less have a second trial”. The oral motion in arrest of judgment was argued then and there (counsel again arguing the Rule 1100 issue) and was denied by the court. No written post-trial motions for either a new trial or in arrest of judgment were ever filed.

The trial and post-trial motions in this case followed the decision of the Pennsylvania Supreme Court in Commonwealth v. Blair, 460 Pa. 31, N. 1, 331 A.2d 213, N. 1 (filed January 27, 1975), and we cannot therefore consider claims not raised in written post-trial motions. See Pennsylvania Rule of Criminal Procedure 1123(a); Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975). In view of the non-compliance by appellant with the requirements of Rule 1123 and the recent holdings of our Supreme Court, we cannot consider the Rule 1100 issue to have been adequately preserved for appellate review.

Affirmed.

HOFFMAN, J., files a concurring opinion in which CER-CONE and SPAETH, JJ., join. PRICE, J., files a concurring opinion in which JACOBS, J., joins. SPAETH, J., files a concurring opinion.

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375 A.2d 342, 248 Pa. Super. 481, 1977 Pa. Super. LEXIS 1993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-erhart-pasuperct-1977.

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