Commonwealth v. Woodson

335 A.2d 369, 234 Pa. Super. 71, 1975 Pa. Super. LEXIS 1504

• Court: Superior Court of Pennsylvania
• Decided: March 31, 1975
• Docket: Appeal, No. 1213
• Status: Published

Opinions

Opinion

Per Curiam,

The appellant complains of the amendment to Rule 47¹ of the Superior Court of Pennsylvania which requires the submission of his case on briefs when he fails to comply with Rule 47, in regard to timely filing. In fact under the rule he was subject to the penalty of dismissal of his appeal.

Appellate courts have wide latitude in deciding cases without oral argument. In Pennsylvania Supreme Court Rule 71 and Superior Court Rule 64, oral argument is not ordinarily permitted in P.C.H.A. appeals. League of Voluntary Hospitals and Homes of New York v. Local 1199, Drug and Hospital Union, 490 F. 2d 1398 (Temp. Emer. Ct. of App. 1973) provided that an order reducing briefing time was permissible. NLRB v. Local No. 42, Int. Ass’n. of Heat and F.I. & Asbestos Workers, 476 F. 2d 275 (3d Cir. 1973) -upheld the validity of a rule which permits dispensing with oral argument.

The rule was designed to require the submission on briefs without oral argument when the appellant violated Rule 47 by failing to file his briefs timely. This avoided the necessity of imposing the more serious penalty provided by Rule 47, to wit: “If Appellant fails to comply with the above requirements within the time specified, or any extension thereof duly allowed, the appeal may be dismissed.” And, of course, its purpose was designed to avoid large backlogs caused by delays in failing to file briefs and multiple continuances. This is clearly within the power of the Court and the parties are given time to advance their arguments by briefs so that there can be no prejudice by the lack of oral argument.

The appellant also complains because the trial judge found the appellant guilty of burglary, and not guilty of theft which he contends are inconsistent verdicts. The court treated it as a merger. This question was not raised below and is waived. However, §3502 (d) of the Pennsylvania Crimes Code permits this type of verdict, in fact, requires it.

Ҥ3502 Burglary

“ (d) Multiple convictions — A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.”

The appellant was charged under Section 3921 (Theft by unlawful taking), which under the circumstances was graded as a misdemeanor of the second degree. Act of Dec. 6, 1972, P.L. 1482, No. 334, §8, 18 Pa. C.S. §§3502, 3903, 3921.

Judgment of sentence affirmed.

1 . “Counsel are also advised that Rule U7 'will be strictly construed with regard to the filing and service of briefs and records and will be literally enforced by this Court.

“On the first day of each Session of Court, in all Districts, if briefs and records are not properly prepared, filed or served within the time set forth in our Rules, or if an order of this Court has not been granted extending the time within which to file such briefs and records, the cases may be immediately non prossed (or the president judge, in his discretion, may require that the cases or any of them be submitted without oral argument by counsel and may require briefs and records to be filed within such time as he determines).”