Com. v. Gambal

• Decision Date: 29 June 1989
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Stephen J. GAMBAL, III, Appellant. 146 E.D. 1988
• Court: Pennsylvania Supreme Court

Page 710

561 A.2d 710

522 Pa. 280

COMMONWEALTH of Pennsylvania, Appellee, v. Stephen J. GAMBAL, III, Appellant.

146 E.D. 1988

Supreme Court of Pennsylvania.

Submitted April 12, 1989.

Decided June 29, 1989.

[522 Pa. 281] Elizabeth Beroes, Special and Conflicts Counsel, for appellant.

John W. Packel, for amicus-defender Assoc. of Philadelphia.

Robert B. Sacavage, Dist. Atty., Melissa Norton, Asst. Dist. Atty., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal, by allowance, from an order of the Superior Court which quashed an appeal from an order of the Court of Common Pleas of Northumberland County denying a motion for modification of sentence filed by the appellant, Stephen J. Gambal, III. The factual background of the case is as follows.

In 1985, just prior to his eighteenth birthday, appellant was charged as a juvenile with two counts of burglary and a number of counts of theft and conspiracy. While these charges were pending, appellant turned eighteen years of age. Soon thereafter, in 1986, appellant became involved in another criminal incident, and, as a result, was charged with robbery, theft, and receiving stolen property. With respect to the latter charges, guilty pleas were entered pursuant to a plea agreement.

The agreement provided for a sentence of two to five years imprisonment, and stated that whenever the earlier juvenile charges were transferred to criminal court appellant would waive certification hearings and enter guilty pleas. Appellant was accordingly sentenced, and, when the juvenile offenses were later certified, hearings were waived and guilty pleas were entered. However, when sentencing upon the certified offenses occurred, the presiding judge was not the same as the one who had imposed the earlier sentences under the plea bargain. The newly presiding judge rejected the plea bargain and its provision that a two to five year sentence should be imposed to run concurrent with the earlier sentences. Appellant nevertheless reaffirmed his pleas, and, after the judge referred to the Pennsylvania Sentencing Guidelines, concurrent sentences of thirty-three months to ten years were imposed for the two burglary charges, with lesser concurrent sentences for the theft and conspiracy charges.

A motion for modification of sentence was filed, challenging the propriety of the thirty-three month to ten year sentences. The motion was denied, and an appeal was taken to the Superior Court pursuant to 42 Pa.C.S. § 9781(b), which provides:

(b) Allowance of appeal.--The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

In connection with his appeal to the Superior Court, appellant submitted a brief addressing relevant issues but failed to include a concise prefatory statement of reasons relied upon for allowance of appeal. Such a statement is required under Pa.R.A.P. 2119(f) in cases where discretionary aspects of sentences are challenged. In Pa.R.A.P. 2119(f), it is provided:

(f) Discretionary Aspects of Sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

The Commonwealth did not raise any objection to the deficiency in appellant's brief. Nevertheless, on September 16, 1987, citing appellant's noncompliance with the rule in question, the Superior Court quashed the appeal, 373 Pa.Super. 633, 536 A.2d 824 (1987). An application for leave to amend the brief to correct the deficiency, and for reargument, was promptly filed. On November 30, 1987, however, the application was denied. The present appeal ensued.

The issue presented is whether the Superior Court erred in quashing the appeal and in denying leave to amend the defective brief. We believe that quashing the appeal was not error, but that appellant should have been granted leave to bring the brief into conformity with the requirements of Pa.R.A.P. 2119(f).

In quashing the appeal, reliance was expressly placed upon this Court's decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In Tuladziecki, we examined the requirements of Pa.R.A.P. 2119(f) and held that, where a defendant objected to the failure of the Commonwealth to set forth in its brief to the Superior Court a concise statement of reasons relied upon in seeking an appeal with respect to the discretionary aspects of sentencing, the court erred in allowing the appeal to proceed. The Tuladziecki decision characterized a party's failure to comply with Pa.R.A.P. 2119(f) as a procedural violation that the Superior Court was not entitled to ignore, at least where there was a proper objection by the opposing party. 513 Pa. at 515, 522 A.2d at 20-21. Unlike Tuladziecki, the present case does not involve a court's refusal to heed an objection lodged by one of the parties regarding a procedural violation of another.

Appellant notes that an issue related to that in Tuladziecki was subsequently addressed by a closely divided en banc decision of the Superior Court in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). In Krum, the court was divided as to whether Tuladziecki requires that Pa.R.A.P. 2119(f) be enforced by the court in all cases, or only in cases where a party has objected to a breach of the rule's requirements. The source of this uncertainty is no doubt attributable to our having stressed in Tuladziecki the important interests that Pa.R.A.P. 2119(f) serves. See discussion infra. Nevertheless, we held, "[Defendant] properly preserved his challenge to this procedural violation, and for the reasons stated herein the Superior Court's decision to overlook it must be vacated." 513 Pa. at 515, 522 A.2d at 21 (emphasis added). If enforcement of the rule were required where none of the parties had raised an objection, obviously it would not have been emphasized that the defendant properly objected to the violation.

Recognizing this, the Superior Court held in Krum that Pa.R.A.P. 2119(f) imposes a procedural requirement that can be overlooked by the court when the Commonwealth makes no objection to a defendant's failure to include in his brief a concise statement of reasons relied upon in challenging discretionary aspects of sentencing. Thus, it was held that the failure of the Commonwealth to object constituted a waiver of the defect, permitting the court to proceed with a determination as to whether a "substantial question," see 42 Pa.C.S. 9781(b), supra, had been presented for review. 367 Pa.Super. at 520, 533 A.2d at 138. Arguably, the Krum decision might be read as not requiring the court to proceed with this determination, but rather as allowing the court to proceed. See Krum, 367 Pa.Super. at 519, 533 A.2d at 138 (when objection has not been made by the appellee, "failure to comply with Rule 2119(f) may be overlooked.") (emphasis added). In any event, we believe the court should be permitted to proceed, but that, upon reviewing the brief and ascertaining the difficulty of...