Com. v. Ragoli

• Decision Date: 13 April 1987
• Citation: 524 A.2d 933,362 Pa.Super. 390
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. Joseph RAGOLI, Appellant. 00913 Pitts. 1986

Page 933

524 A.2d 933

362 Pa.Super. 390

COMMONWEALTH of Pennsylvania v. Joseph RAGOLI, Appellant.

00913 Pitts. 1986

Superior Court of Pennsylvania.

Submitted Jan. 12, 1987.

Filed April 13, 1987.

John Elash, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Com.

Before BROSKY, POPOVICH and MONTGOMERY, JJ.

POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County adjudging the appellant, Joseph Ragoli, guilty of defiant trespass. We reverse.

The facts, viewed in a light most favorable to the verdict-winner, reveal that, at approximately 8:43 p.m. on the 20th of March, 1984, University of Pittsburgh Security Officer Albert M. Fink received a call from a fellow employee, Officer Harris, that an unauthorized person had been seen entering Benalum Hall, a University building located in the Oakland section of the City.

When Officer Fink arrived on the scene, Officer Harris was in the lobby speaking to the appellant. Mr. Ragoli was asked whether he had any identification. He responded in the negative. When he was questioned as to his address, he told the officers he had none; "[h]e live[d] on the street." A check in the phone book disclosed that the appellant was not listed.

After the officers told the appellant that he would have to leave the building because it was closed to the public, he refused to do so, became belligerent and stated he did not have to exit the premises since he was allowed in the building. However, his efforts to establish the legitimacy of his presence by means of a phone call to a "professor" proved unsuccessful when no one answered his call. Without the appellant's ability to prove that he was licensed to be on the premises, either as a student, faculty member, staff member or by someone empowered to authorize entry, he was arrested and later charged by complaint with defiant trespass. See Pa.R.Crim.P. 65.

The appellant's sentence before the district magistrate (fine and costs totalling $140.00) was appealed, as permitted by Pa.R.Crim.P. 63(b)(3), to the Court of Common Pleas "for a trial de novo." The facts, as just recounted, were presented at a bench trial conducted on November 7, 1985. The court's verdict, however, was not entered until the following day, and then it came in the form of a typed order in which the appellant was "adjudged Guilty of the offense of CC 3503(b)(1)(i) as charged...." ¹ In the same order, the court wrote that the appellant was "sentenced to pay the Fine and Costs imposed by the Issuing Authority." The order also made reference to, inter alia, the suspension of the sentence imposed pending the filing and disposition of post-verdict motions. ² Counsel for the appellant, in addition to the appellant himself, filed post-verdict motions which were denied by order dated February 25, 1986. A motion for reconsideration of the February 25th order was filed, but the record does not disclose whether it was ever disposed of by the trial court.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The next document of record is the appellant's notice of appeal. It was being taken from the order of the trial court dated February 25, 1986 "reimposing" the November 8, 1985 "Judgment of Sentence", which was suspended during the ruling on post-verdict motions. The appeal was remanded upon the Superior Court's grant of the appellant's counsel's petition to withdraw. Jurisdiction was retained. New counsel was appointed and the appeal raised the sufficiency of the evidence and the trial court's alleged error in excluding deposition evidence.

Before we can address the merits of the appellant's claims, we must, as is our right and obligation, determine whether the case is properly before us for review. See Commonwealth v. Lewis, 288 Pa.Super. 198, 431 A.2d 357 (1981). This is so despite the absence of any objection from either party to the litigation. See Commonwealth v. Morgenthaler, 320 Pa.Super. 120, 466 A.2d 1091 (1983); Commonwealth v. Williams, 290 Pa.Super. 158, 434 A.2d 179 (1981).

This case is mired in a procedural quagmire that necessitates a re-capitulation of this Court's position regarding procedural due process.

To begin with, in criminal law, an appeal is to be taken from the judgment of sentence and not an order denying either post-verdict motions (see Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244 (1951)), or the reconsideration of the same, the latter of which is foreign to the Rules of Appellate Procedure when it comes to perfecting an appeal therefrom.

Next, we observe that the appellant's appeal from the district magistrate's finding of guilty entitled him to a full panoply of procedural rights, first enunciated by this Court in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) to apply to appeals of summary convictions to the Court of Common Pleas for a de novo trial. See also Comment to Pa.R.Crim.P. 86 ("The Rules of Criminal Procedure are applicable generally to these [summary judgment] proceedings."). This translates into an explanation of one's post-verdict rights as set forth in Pa.R.Crim.P. 1123, ³ which in this case are even more extant because we are dealing with an appeal of a misdemeanor of the third degree that carried with it a potential upon conviction of a fine ($2,500) and imprisonment (one year). ⁴ See Koch, supra. Additionally, compliance with Pa.R.Crim.P. 1405 ("Sentencing Proceeding") was required. Nonetheless, neither Rule was adhered to by the trial court despite the provisions in the Rules indicating otherwise.

For example, Rule 1405 itemizes those requirements which must be met at the time set for sentencing; namely:

At the time of sentencing, the judge shall:

(a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing;

(b) state on the record the reasons for the sentence imposed;

(c) advise the defendant on the record:

(1) of his right to appeal and the time within which he must exercise such right and, if he is indigent, of his right to proceed in forma pauperis and to be provided free counsel;

(2) of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the denial of a motion to withdraw the plea);

(3) of the ten (10) day time limit within which such motions must be filed;

(4) that the defendant is entitled to be represented by counsel in preparing and litigating such motions; and

(5) that only claims raised in this court may be raised on appeal;

(d) require that a record of the sentencing proceedings be made and preserved so that it can be transcribed as needed. The record shall include:

(1) the record of any stipulation made at a pre-sentence conference; and

(2) a verbatim account of the entire sentencing proceeding.

A reading of the Rule discloses one salient point, i.e., everything which occurs in respect to the sentencing proceeding must be of record; this means in open court. Such a practice has been woven into our judicial system not only to afford the defendant the opportunity to question the proceedings, but it avails the appellate courts the advantage to assess any claims of error (be they related to pre-trial, trial, post-trial or sentencing) from a fully developed record and dispenses with a needless remand. See Commonwealth v. Rivera, 339 Pa.Super. 242, 488 A.2d 642 (1985) (en banc); Pa.R.App.P. 1926. To the same effect see Rule 1123, which, likewise, speaks in terms of the defendant being advised of his rights "on the record." Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981).

Substitution for the Rules' "on the record" requirements cannot be had by resorting to an ex post facto document, form or opinion. See, e.g., Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983) (en banc; reasons for sentence must be given at the time of imposition and cannot be satisfied by subsequently written opinion to fill the void). Thus, the trial court's issuance of a sentence and the advisement of rights attendant thereto by means of a form document (see note 2, supra) were in derogation of Rules 1123 and 1405. To countenance such a practice, in the face of procedural rules and case law to the contrary, would be to look askance at the decisional law of this Commonwealth and, ultimately, invite mere lip-service to our Rules of Criminal Procedure. Compare Vorhauer v. Miller, 311 Pa.Super. 395, 457 A.2d 944 (1983) (Rules of Civil Procedure). This we cannot and will not do in the face of specifically designated procedural requirements imposed upon a judge. See Picker, supra; Comment to Rule 1405.

The fact that the appellant was not present at trial, and we know he was not at the sentencing since none was held in open court, did not diminish the obligation of the court to see to it that a record was created that tracked the Rules of Criminal Procedure. ⁵ A record was created with regard to the trial, and properly done so with trial counsel's failure to object to his client's presence. ⁶ We see no reason why the sentencing could not have proceeded in the same fashion, given the noncapital nature of the offense (a misdemeanor). At 10A P.L.E. Criminal Law § 502 at 221 it is written:

Non-capital felony cases; waiver. In non-capital felony cases, as in capital cases, the defendant has a right to be present at all stages of the proceedings. However, in non-capital cases the defendant may waive his right to be present.

This ability to conduct criminal matters in the defendant's absence has been codified at Pa.R.Crim.P. 1117(a), which provides:

(a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule....