Com. v. Keysock

• Decision Date: 22 September 1975
• Citation: 345 A.2d 767,236 Pa.Super. 474
• Parties: COMMONWEALTH of Pennsylvania v. Ernest J. KEYSOCK, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 767

345 A.2d 767

236 Pa.Super. 474

COMMONWEALTH of Pennsylvania v. Ernest J. KEYSOCK, Jr., Appellant.

Superior Court of Pennsylvania.

Sept. 22, 1975.

Philip M. Cullen, Asst. Public Defender, lancaster, for appellant.

D. Richard Eckman, Dist. Atty., Charles A. Achey, Jr., Asst. Dist. Atty., Lancaster, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

On January 27, 1973, the car in which appellant and his wife were riding was involved in an accident with another car on Route 30 in Lancaster County. An investigating police officer found appellant and his wife lying on the road near their car. Glindon Ashbrook, the driver of the other car, died as a result of the injuries he sustained in the collision. Appellant was arrested on April 5, 1973, and charged with involuntary manslaughter. A pre-trial motion was filed to suppress a statement by appellant that he was the driver of his car. After a hearing, the motion ws denied, and appellant was brought to trial before President Judge Johnstone and a jury. At the conclusion of the Commonwealth's case, appellant filed a demurrer to the evidence, but the trial judge overruled it. The jury in due course returned a verdict of guilty. Motions in arrest of judgment and for a new trial were denied by the court En banc, and appellant was sentenced to a term of six to twelve months in the Lancaster County Prison and was ordered to pay a fine of $200 plus costs.

Appellant raises four issues on appeal: that the trial judge erred in refusing to suppress appellant's pre-trial statement; that he erred in admitting into evidence opinions by eyewitnesses concerning the speed of appellant's vehicle; that he erred in admitting into evidence the expired state inspection sticker from appellant's car; and that the evidence was insufficient to support appellant's conviction. The first question we must decide is which of these issues is properly before us.

Appellant's post-trial motions do not raise the issues concerning the witnesses' opinions and the inspection sticker. He therefore is precluded from raising those issues on appeal. Commonwealth v. Blevins, --- Pa. ---, 331 A.2d 181 (1975); Commonwealth v. Bronbaugh, --- Pa. ---, 331 A.2d 171 (1975); Commonwealth v. Kearney, --- Pa. ---, 331 A.2d 156 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Pa.R.Crim.Pro. 1123. The other two issues, the suppression issue and the sufficiency issue, were raised in the post-trial motions. Since those issues were also raised at trial, it would seem that they were properly preserved for appeal. The court En banc, however, opens its opinion with the statement that '(t)he only question argued by defense counsel, both orally and in his brief, was whether the defendant's admission that he was driving the car which caused the victim's death was properly admitted into evidence. No question was raised that the evidence did not support the verdict in quantity and quality and no error was alleged in the charge.' Slip Op. 1. The court then proceeds to consider only the suppression issue. From this it is clear that that issue is properly before us on appeal. In regard to the sufficiency issue, however, a novel question is presented: Apparently the court En banc considered the issue either waived or abandoned (the court did not say which); but was it?

A litigant must do two things in order to preserve an issue. First, he must make a timely, specific objection at trial. Commonwealth v. Wiliams, 458 Pa. 319, 326 A.2d 300 (1974); Commonwealth v. Kuterbach, 458 Pa. 318, 326 A.2d 283 (1974); Commonwealth v. Clair, --- Pa. ---, 326 A.2d 272 (1974). And second, he must raise the issue on post-trial motion. Commonwealth v. Blevins, supra; Commonwealth v. Bronbaugh, supra; Commonwealth v. Kearney, supra; Commonwealth v. Reid, supra; Commonwealth v. Agie, supra. Here, appellant met both of these requirements. He raised the sufficiency issue at trial by his demurrer to the evidence, and he raised it on post-trial motion by listing it as a reason supporting the motion. Accordingly, the issue cannot be considered waived.

Our appellate courts have generally considered an issue to have been abandoned when the party has properly preserved the issue at trial but then failed to pursue it on appeal. See Commonwealth v. Piper, 458 Pa. 307, 310 n.5, 328 A.2d 845, 847 n.5 (1975) ('Failure to pursue an issue on appeal is just as effective a forfeiture as is the failure to initially raise the issue.'); Yefko v. Ochs, 437 Pa. 233, 236 n.1. 263 A.2d 416, 418 n.1 (1969); Harman v. Chambers, 358 Pa. 516, 522, 57 A.2d 842, 845 (1948). So far as this court is concerned, what this means is that the appellant must file a brief with each specific issue listed as one of the 'Statement of Questions Involved.' Rule 22 of the Superior Court Rules requires the appellant to file a brief before argument, and provides that if he does not, the appeal will be dismissed. Rule 42, in turn, requires the appellant to list his legal arguments in a section of the brief entitled 'Statement of Questions Involved,' and warns that this requirement 'is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.' Accord, Supreme Court Rules, Rule 52; Rules of the Commonwealth Court, Rule 93. Therefore, any person who appeals to this court knows or should know that in order to raise an issue he must follow a certain procedure, and that if he does not, the issue will be considered to have been abandoned.

Here, the court En banc appears to have followed the same procedure that this court does. The difficulty is, however, that the court does not have any rule comparable to our Rules 22 and 42.

The Pennsylvania Rules of Criminal Procedure do not require that briefs be filed with post-trial motions. In fact, Rule 1123 states that '(i)f the grounds asserted do not require a transcript, neither the filing nor argument of post-verdict motions shall be delayed for lack of transcript of the notes of testimony.' Nor do the Lancaster County Rules of Court require briefs with post-trial motions. Those rules are divided into two parts; the Rules of the Court of Common Pleas, and the Rules of the Courts of Oyer and Terminer and General Jail Delivery and Quarter Sessions, the former dealing with civil cases, the latter with criminal. For the criminal cases, there are two rules dealing with post-trial motions. Rule 11.10 provides: 'Oral Motions for a New Trial and in Arrest of Judgment must be made on the day on which the jury verdict is rendered and written Motions, together with supporting reasons, must be filed within seven days following the verdict.' Rule 11.11 provides: 'All written Motions for a New Trial and in Arrest of Judgment must be accompanied by an affidavit made by the attorney for the moving party that said Motion is not made for the purpose of delay, but because it is believed that an injustice has been suffered.' ¹ Here, appellant complied with the relevant rules of court; he did file oral and written motions; he did give sufficiency of the evidence as a reason in support of his motion; and he did file the requisite affidavit.

In these circumstances, we conclude that appellant did not abandon the sufficiency issue; to say that he had, would be to penalize him for failing to do something he was not required to do. We do not hold that an issue cannot be abandoned before a lower court unless the court has rules comparable to our Rules 22 and 42. However, in the absence of such rules the record must show abandonment. Since here it does not, we shall consider not only the suppression issue but also the sufficiency issue.

I

The record of the suppression hearing discloses that appellant was seriously injured in the accident and was in the hospital for approximately fifteen days (eight days in a coma). State Trooper McVitty, who investigated the accident, tried to speak with appellant the day of the accident but was unable to. He did not try again until early March because he did not want to aggravate appellant's injuries in any way. Finally, on March 7, 1973, McVitty and Lancaster Detective Fletcher went to appellant's home to question him. There McVitty, using a card, immediately read the Miranda warnings to appellant. When asked, appellant said he understood his rights. McVitty then asked appellant about this health and whether he felt up to talking; appellant said he did. McVitty then asked appellant whether he had been the driver of the car involved in the accident, and appellant said he had been. At that point, McVitty was handed the telephone and was advised by defense counsel that appellant did not wish to answer any more questions. No further questions were asked.

Appellant's testimony at the suprression hearing did not rebut that presented by the Commonwealth except for one crucial point. Appellant denied ever saying he was the driver of the car; he testified that he only admitted to being the owner of the car. The hearing judge, however, chose not to believe appellant, and appellant does not contest that decision. Instead, it is appellant's position that the judge should have refused to allow McVitty to testify concerning appellant's alleged admission because appellant did not voluntarily waive his right to remain silent. He argues that the trooper's initial inquiries about his health so disarmed him that he was tricked into giving a statement he did not wish to give. We find this contention to be without merit.

It is clear that an individual may waive his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Goodwin, --- Pa. ---, 333 A.2d 892 (1975); Commonwealth v. Taper, 434 Pa. 71, 253...