Commonwealth v. Mercalde

530 A.2d 469, 365 Pa. Super. 594, 1987 Pa. Super. LEXIS 8915

• Court: Superior Court of Pennsylvania
• Decided: August 20, 1987
• Docket: No. 01082
• Status: Published

Opinions

POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County denying the post-trial motions of the appellant, Rose Mercalde, which, in effect, activated the judgment of sentence suspended pending the disposition of said motions. We reverse.

The record indicates that the appellant appealed the summary conviction and fine imposed by a district justice for harassment to Common Pleas Court. A non-jury trial took place on May 15, 1986. The following day, the trial court mailed to the appellant its order, which reads:

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The appellant’s counsel filed a “Notice of Appeal From Summary Conviction” challenging, inter alia, the procedural improprieties “in that the verdict and sentence, if any, were not announced in open court immediately upon the conclusion of the trial.” (Point 11, Paragraph h ¹)

Although the appellant did pursue such a claim in her pro se brief to this Court, and is not responded to by the trial court in its opinion to us, we note its existence in the course of reconstructing the facts at bar, the ability of the trial court to remedy the procedural errors, and its failure to do so.

The procedural shortcomings in the case at bar are identical to those present in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by Popovich, J., with Montgomery, J. Concurring in Result and Brosky, J. Dissenting).

Accordingly, for the reasons set forth in Ragoli, which are responsive to this case as well, we reverse the order of the trial court and remand for proceedings consistent with the mandate of Ragoli Accord Commonwealth v. Adame, 363 Pa.Super. 405, 526 A.2d 408 (1987).

Order reversed and case remanded for proceedings not inconsistent with the opinion herein written.² Jurisdiction is not retained.

WIEAND, J., filed a concurring and dissenting opinion.

1 . The relevant portion of the “Notice of Appeal From Summary Conviction" reads:

11. That the within adjudication of guilt against the Defendant was in violation of her constitutional rights under the Constitution of the United States of America, Commonwealth of Pennsylvania, as well as her rights under the Pennsylvania Rules of Criminal Procedure and include:

a. The Defendant was denied her right to argue in mitigation of sentence at time of sentencing and was adjudicated guilty by mail.

b. The Defendant was denied her right to argue at the demurrer stage;

c. The Defendant was denied her right to make a final argument;

d. The Defendant was denied her right to challenge the sufficiency of the evidence;

e. The Defendant was denied her right to be present at time of sentencing;

f. The Defendant was denied her right to make a statement at time of sentencing;

g. The Defendant was denied her right to present information to the Court at time of sentencing;

h. Pennsylvania Rule of Criminal Procedure Rule 63(e) was violated in that the verdict and sentence, if any, were not announced in open court immediately upon the conclusion of the trial.

i. The Defendant was improperly adjudicated guilty of the offense of Harassment where proof was not beyond a reasonable doubt.

These same claims appear at pages 5 — 6 of the appellant’s pro se brief to us.

2 . We point out the persistent confusion generated by the simultaneous entry of a judgment of sentence and its suspension pending the filing and disposition of post-trial motions.

The better practice, as discussed fully in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by Popovich, J., with Montgomery, J. Concurring in Result and Brosky, J. Dissenting), would be to enter a judgment of sentence after post-trial motions, if any are submitted, are disposed of by the trial court.