Commonwealth v. Cornelius , 254 Pa. Super. 565 ( 1978 )

VAN der VOORT, Judge:

On February 14, 1975, appellant Richard Cornelius was speeding south on U. S. Route 15, traveling 88 miles per hour in a 55 mile per hour zone, when he passed through a radar trap being operated by Trooper P. W. Baclawski of the Pennsylvania State Police. Appellant was stopped and given a citation.

On February 20, 1975, appellant appeared in the office of District Justice Dean E. Dawes, and stated that he wished to plead not guilty. Appellant was informed that a hearing date would be set and that he would be notified of the date by certified mail. The transcript of the district justice reveals that “[d]ue to previous hearings scheduled and other matters on the calendar, the hearing date was set for March 26, 1975, and defendant was sent notice of this hearing date on February 21, 1975.” The hearing was postponed twice, first because of the unavailability of Trooper Baclawski (who went on vacation), then because of an accident which required hospitalization of the district justice. On April 9, 1975, appellant presented a Motion to Dismiss to the district justice. No action was taken on this motion. On April 29, 1975, notice of a new hearing date of May 22, 1975 was sent to appellant by certified mail. Appellant failed to appear for his hearing, was found guilty, then appealed to the Court of Common Pleas for a trial de novo.

At the de novo trial, held on February 3, 1976, appellant’s Motion to Dismiss, filed with the lower court only five days prior to trial, was denied, and appellant was once again found guilty. Appellant filed no post-trial motions, but took an appeal to our court, raising several vaguely worded issues. We find that appellant waived the right to argue these issues on appeal by his failure to file his Motion to Dismiss at least ten days prior to trial and by his failure to file written post-verdict motions.¹

Former Pa.Rule of Criminal Procedure 305 (replaced by Rule 307, effective January 1,1978) provided that pretrial applications for relief would not be considered by the lower court unless made at least ten days prior to trial, unless sufficient opportunity did not exist. Appellant filed his appeal for trial de novo on May 27, 1975, and had over eight months in which to file his motion to dismiss. Appellant took no steps in the lower court to place on record the reason, if any, for his failure to file such motion at least ten days prior to trial, and the lower court appropriately relied (in its opinion filed April 26, 1976) on appellant’s tardiness as a ground for refusing appellant’s application.

Under Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) and Commonwealth v. Bailey, 463 Pa. 354, 334 A.2d 869 (1975), an appellant’s failure to comply with Pa.Rule of Criminal Procedure 1123 and raise issues in written post-verdict motions will result in a waiver of the right to raise those issues on appeal. Under Commonwealth v. Schroth, 458 Pa. 233, 328 A.2d 168 (1974) and Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975), however, waiver of the right to file post-verdict motions must be knowing and intelligent. In Schroth, the lower court failed to comply with Rule 1123 and did not advise the defendant of the necessity of raising issues in written post-verdict motions in order to preserve the issues for appeal. In both Schroth and Tate, the Supreme Court was unable to determine from the record whether or not the defendants had knowingly and intelligently waived the filing- of post-verdict motions, and the Supreme Court accordingly remanded both cases for a determination of whether or not the waivers were knowing and intelligent.² In the case before us, appellant appeared on his own behalf at the de novo trial and announced to the trial judge that he was an attorney and member of the Bar, and that he was familiar with the rules that they would be discussing (apparently referring to rules mentioned in the Motion to Dismiss). Although the record does not indicate that the lower court advised appellant of the necessity of filing post-verdict motions, under the circumstances we find that appellant’s failure to file such motions was “knowing and intelligent”, and that appellant has waived the right to now raise his issues before our Court.

Judgment of sentence affirmed.

JACOBS, President Judge, and CERCONE and PRICE, JJ., concur in the result of this opinion. SPAETH, J., files dissenting opinion in which HOFFMAN, J., joins. WATKINS, former President Judge, did not participate in the consideration or decision of this case.

1 . We note also a failure by appellant to fully comply with the Superior Court Rules then in effect with respect to printing of briefs and records.

2 . For cases in which the Supreme Court, after determining from the record that defendants had most likely been misled by the lower court and therefore could not have knowingly and intelligently waived their appeal rights, remanded to permit the defendants to file post-verdict motions nunc pro tunc, see Commonwealth v. Miller, 469 Pa. 370, 366 A.2d 220 (1976) and Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975).