Com. v. Fortune

• Citation: 346 A.2d 783,464 Pa. 367
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. William FORTUNE, Appellant.
• Decision Date: 30 October 1975
• Court: United States State Supreme Court of Pennsylvania

Page 783

346 A.2d 783 464 Pa. 367 COMMONWEALTH of Pennsylvania, Appellee,
v.
William FORTUNE, Appellant. Supreme Court of Pennsylvania. Argued June 27, 1975.
Decided Oct. 30, 1975.

Page 784

[464 Pa. 369] Neil Jokelson, Philadelphia, for appellant.

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F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

[464 Pa. 370] OPINION OF THE COURT

EAGEN, Justice.

Appellant, William Fortune, age thirteen, was tried as an adult and found guilty of murder in the second degree and not guilty of robbery by a jury in Philadelphia. Motions in arrest of judgment and for new trial were denied, ¹ and Fortune was sentenced to imprisonment in an adult facility from six to twenty years. This appeal followed. ²

Appellant contends that the trial court erred in admitting testimony of robberies other than the one charged in the indictment which culminated in the murder. However, before we reach that issue, we must consider the Commonwealth's claim that it was not properly preserved for appellate review.

The Commonwealth contends that appellant's boiler plate motions failed to specifically raise the evidentiary issue, thus violating Rule 1123(a) of the Pennsylvania Rules of Criminal Procedure, and that, therefore, the issue has been waived. Commonwealth v. Blair, --- Pa. ---, n. 1, 331 A.2d 213, n. 1 (1975). Although appellant's motions lacked the necessary specificity, it is clear from the opinion of the court below that, as in Blair, the issue was presented at oral argument. In Blair, it was noted:

'The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth,[464 Pa. 371] issues not presented in compliance with the rule will not be considered by our trial and appellate courts.' 331 A.2d at 214, n. 1.

However, because the longstanding practice of some courts of accepting and ruling on oral motions tended to mislead counsel into relying upon that practice, we did consider the matters presented by Blair in his oral motions. Similarly, where, as here, all of the relevant events occurred before the Court's opinion in Blair served notice that compliance with Rule 1123(a)'s requirement of written motions would be mandatory, ³ it would be unfair to impose forfeiture of claims of error solely on the basis of failure to present written motions based on those claims. ⁴ This is especially so where the trial court condoned the noncompliance with Rule 1123(a) by passing upon the merits of the issue tendered orally. Consequently, we conclude that appellant's evidentiary issue is properly before us.

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The facts relevant to the substantive issue are as follows. A commonwealth witness, Phillip Brockington, age fifteen, Fortune's co-defendant who had plead guilty and been sentenced, testified that he and Fortune approached Stanley Simpson, age 16, at approximately 10:00 p.m. on June 30, 1973. Brockington demanded money. When Simpson replied that he did not have any, appellant pushed Simpson, drew a knife which had been secreted in Brockington's pocket and stabbed twice at Simpson, killing him.

[464 Pa. 372] Brockington further testified that he and Fortune had participated in six other robberies within a one block radius of the Simpson killing during June and July of 1973. Four of these robberies were said to have occurred in front of the Uptown Theatre, another at the same spot as the Simpson killing and the sixth in the subway entrance across the street from the scene of the Simpson killing. In all but one robbery ⁵ the modus operandi was said to be the same: Brockington would demand money, if the victim refused, Fortune would threaten or use force. Further, all of the victims were said to be 'little boys' or 'little kids.' However, Brockington not only failed to identify or describe the victims but also failed to give times or dates of these occurrences.

The victim of the sixth robbery, Michael Stanley, testified to confirm Brockington. He was...