Commonwealth v. Heckman

530 A.2d 1372, 366 Pa. Super. 224, 1987 Pa. Super. LEXIS 8976
CourtSupreme Court of Pennsylvania
DecidedSeptember 18, 1987
Docket2248
StatusPublished
Cited by9 cases

This text of 530 A.2d 1372 (Commonwealth v. Heckman) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Heckman, 530 A.2d 1372, 366 Pa. Super. 224, 1987 Pa. Super. LEXIS 8976 (Pa. 1987).

Opinions

OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence imposed following appellant’s conviction for involuntary deviate sexual intercourse,1 corruption of minors,2 and indecent exposure.3 Appellant presents three issues for our review: (1) whether the trial court erred in ruling that the victim, age five at the time of the offense, possessed the requisite competency to testify; (2) whether the trial court properly imposed consecutive sentences for the three convictions; and (3) whether the evidence was sufficient to sustain the verdict in light of the trial court’s refusal to allow defendant’s alibi witness to testify. For the reasons which follow, we conclude that issues (1) and (3) are waived. Having considered appellant’s remaining issue, we find it to be without merit and therefore affirm the judgment of sentence.

This matter involves appellant’s sexual assault of a five-year-old child. The victim, J.M., testified at trial that appellant licked his “pee-pee” and identified his “pee-pee” as being his penis. J.M. further stated that appellant “pulled his [appellant’s] pee-pee out” and made J.M. and his sister, H. M., touch it. The jury returned a verdict of guilty on November 15, 1984. Thirteen days later, on November 28, 1984, appellant filed post-verdict motions which the trial court subsequently denied. Appellant was then sentenced on August 12, 1985, to prison terms of five to ten years on his conviction of involuntary deviate sexual intercourse and six months to three years each on his convictions of corruption of minors and indecent exposure. Appellant’s sentence for indecent exposure was to be served concurrently with his sentence for corruption of minors and those sentences were to be served consecutively with appellant’s sentence for involuntary deviate sexual intercourse. Thereafter, on [227]*227August 26, 1985, appellant filed a pro se motion for reconsideration and modification of sentence nunc pro tunc, which the trial court denied, treating it as having been timely filed.4 Appellant filed a timely notice of appeal on August 27, 1985.

We do not address the merits of appellant’s first and third issues as they have not been properly preserved for our review. Pennsylvania Rule of Criminal Procedure 1123(a) states in pertinent part:

Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment ... [0]nly those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard.

Pa.R.Crim.P. 1123(a).

Interpreting this rule, our courts have held that only those issues included in post-verdict motions will be considered preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Cherpes, 360 Pa.Super. 246, 520 A.2d 439 (1987); Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984). Appellant’s first issue is not included in his post-verdict motions. Under the foregoing case law, this issue has been waived.

Our courts have also addressed post-verdict motions set out in boilerplate fashion. In Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc), we held that:

a post-verdict motion, either that “the evidence was insufficient to support the verdict,” or that “the verdict was against the weight of the evidence,” will preserve no issue for appellate review unless the motion goes on to specify in what respect the evidence was insufficient, or why the verdict was against the weight of the evidence.

[228]*228Id., 315 Pa.Superior Ct. at 259-260, 461 A.2d at 1270 (emphasis in original). See also Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987). Appellant’s third issue was set out in boilerplate fashion.5 As a result, this issue has also been waived.

We also observe that appellant’s post-verdict motions were not timely, having been filed thirteen days after entry of the jury’s verdict. In Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983), we held that “a violation of the time requirements of R. 1123(a) will work a waiver on appeal, notwithstanding the trial court having treated a tardily filed post-verdict motion on its merits.” Id., 309 Pa.Superior Ct. at 535, 455 A.2d at 1213. As we stated in Gregory, “R. 1123(a) must be complied with; and trial court indulgence of violations will not serve to insulate parties on appeal from the consequence of violations of the Rule.” Id., 309 Pa.Superior Ct. at 533, 455 A.2d at 1212. See Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980).

We now turn to appellant’s second issue. Appellant asserts that the acts which constituted corruption of minors and indecent exposure were basically the same as the acts required for the conviction of involuntary deviate sexual intercourse and that, as a result, the trial court erred in imposing consecutive sentences.6 We note that the trial [229]*229court did impose separate sentences for each of these convictions, directing that the corruption of minors and indecent exposure sentences run concurrently with each other, and consecutively with the involuntary deviate sexual intercourse sentence.

Our Supreme Court recently addressed the common law merger doctrine in Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987). There, the Supreme Court cited and approved of a two-pronged test adopted by an en banc panel of this court in Commonwealth v. Leon Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) {en banc), summarizing that test as follows:

Under this test, merger is required only when two prerequisites are met. First, the crimes must “necessarily involve” one another. Second, even if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest.

Commonwealth v. Michael Williams, supra, 514 Pa. at 136-137, 522 A.2d at 1101, citing Commonwealth v. Leon Williams, supra, 344 Pa.Super. at 125, 496 A.2d at 50. See also Commonwealth v. Taylor, supra, 362 Pa.Super. at 408, 524 A.2d at 942.

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Commonwealth v. Heckman
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Cite This Page — Counsel Stack

Bluebook (online)
530 A.2d 1372, 366 Pa. Super. 224, 1987 Pa. Super. LEXIS 8976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-heckman-pa-1987.