Com. v. Sheaff

• Decision Date: 28 August 1987
• Docket Number: No. 27,27
• Citation: 530 A.2d 480,365 Pa.Super. 613
• Parties: COMMONWEALTH of Pennsylvania v. Robert SHEAFF, Appellant. Phila. 1985.
• Court: Pennsylvania Superior Court

Page 480

530 A.2d 480

365 Pa.Super. 613

COMMONWEALTH of Pennsylvania v. Robert SHEAFF, Appellant.

No. 27 Phila. 1985.

Superior Court of Pennsylvania.

Submitted Nov. 20, 1986.

Filed Aug. 28, 1987.

Louis Lipschitz, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.

TAMILIA, Judge:

Appellant was found guilty by a jury of burglary and was sentenced to seven and one-half to fifteen years incarceration. This is an appeal from the judgment of sentence entered after denial of appellant's post-trial motions.

We find no need to address appellant's sufficiency of the evidence argument because appellant failed to properly preserve this issue for appellate review in his post-trial motions. In his post-trial motion, filed December 9, 1983, appellant framed the sufficiency of the evidence issue in "boilerplate" fashion, and thus did not preserve the issue for appellate review as required by Commonwealth v. Holmes, 315 Pa.Super. 256, 259-60, 461 A.2d 1268, 1270 (1983). See Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Comment to Pa.R.Crim.P. 1123. While appellant did file a supplemental post-trial motion on February 8, 1984, where he reasserted his sufficiency of the evidence argument with the requisite specificity, the record does not show that appellant ever sought the necessary permission of the trial court to file this supplemental post-trial motion nunc pro tunc. Whether a defendant can file additional reasons for a new trial is a matter of discretion with the trial court. Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974).

This Court, in its recent Opinion in Commonwealth v. Kelly, --- Pa.Super. ----, 528 A.2d 1346 (1987), quoted the Pennsylvania Supreme Court in Talley as follows:

The Supreme Court, in deciding the trial court did not abuse its discretion in refusing to permit the defendant to file additional reasons for a new trial, stated:

The rule provides that a defendant may request leave to file additional reasons for a new trial. This does not imply that a defendant can file these as a matter of right, but it is a matter of discretion with the trial court. In the facts of this case, we fail to see an abuse of that discretion.

Id. at 579, 318 A.2d at 924.

We then went on to say:

Rule of Criminal Procedure 1123(a), which is derivative of the rule cited in Talley (19 P.S. 1123) (footnote omitted), states:

Rule 1123. Post-Verdict Motions

(a) Within ten (10) days after a finding of guilty, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pretrial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument, a hearing, or both shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard. If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.

While the earlier version of Rule 1123 permitted additional time to file motions, if allowed by the court within the initial seven-day period, only those motions filed during the seven-day period or within such further time as the Court permitted could be argued at post-trial motions or on appeal. The current Pennsylvania Rule of Criminal Procedure 1123(a) is a recodification of the original Rule 1123 and, in addition to increasing the time for filing motions to ten (10) days (to provide uniformity with the Rules of Civil Procedure), the rule added the provision: 'If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.' While a custom appears to have developed whereby counsel, in filing original and timely post-trial motions, reserves the right to file additional motions, nothing in the rules permits unilateral extension of time, and in no event may supplemental motions be filed and heard nunc pro tunc unless filed in a reasonable time and with approval of the court.

* * *

We hold that the supplemental post-verdict motions did not preserve the issues for review (whether filed or merely submitted) despite the fact that the court below addressed them on the merits. Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983). Accordingly, the aforementioned issues have been waived.2

To summarize and clarify our position in this case and the cases cited herein we hold that permission must be requested and granted on the record before supplemental post-trial motions may be filed. Counsel may not simply reserve the right to file such motions by adding a notation to that effect in the original post-trial motions. In order to preserve the right to file supplemental motions after the transcript is received, a request must be approved in advance in a timely fashion. If permission is granted, and supplemental motions are filed, an allegation that could have been raised without the need for a transcript is still considered to be waived. See Talley, supra. This procedure is required by the mandate of Pa.R.Crim.P. 1123(a).

Since we find appellant's sufficiency argument waived, we will not review issues which have not been properly preserved for review. However, since appellant's remaining arguments were properly raised in his post-trial motions, we will address them.

Appellant contends the trial court erred in admitting portions of a police report which contained the statement of a police officer--the partner of a testifying officer--who was not available to testify at the time of trial. We find no merit in this argument due to the fact that appellant's counsel himself referred to the non-testifying officer's report and even had a portion of that report admitted into evidence through testimony (N.T. 12/2/83, pp. 57-60). Appellant cannot now argue that it was error for the trial court to allow the Commonwealth to admit into evidence the full text of the non-testifying officer's report as hearsay (N.T. 12/2/83, pp. 77-79), when appellant's counsel "opened the door" for such testimony by first referring to the report. As we stated in Commonwealth v. McCabe, 345 Pa.Super. 495, 498 A.2d 933 (1985): "If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area." (Citations omitted.) Thus we find no error in admitting the report due to appellant's effective waiver of objection by first referring to the report. ¹

Appellant claims that the trial court erred in refusing to strike for cause a juror, Mr. Driscoll, who was employed as a crime investigator by a local community organization partially funded by the city and state governments. In Commonwealth v. Jones, 477 Pa. 164, 168, 383 A.2d 874, 876 (1978), our Supreme Court held "that one's status as a law enforcement officer in and of itself is insufficient to require disqualification as a juror in a criminal case." In quoting our earlier Opinion in Commonwealth v. Colon, 223 Pa.Super. 202, 206-7, 299 A.2d 326, 328 (1972), the Supreme Court stated:

The categories of relationships which automatically call for removal should be limited because it is desirable to have a jury composed of persons with a variety of backgrounds and experiences. We believe that an enforcement officer is capable of professional objectivity in considering the case of a defendant accused of a crime against society. Absent any real relationship to the case, the removal of an enforcement officer should depend on the sound exercise of discretion by the trial judge. (Emphasis added by the Court).

Id. at 168, 383 A.2d at 876. Further, the Jones, supra, Opinion went on to adopt the following two-tier analysis we established in Colon, supra, to determine whether a police officer or law enforcement official could serve as a juror in a criminal case:

1. If a police officer has a 'real relationship' to the case, he must automatically be excluded from serving on a criminal jury.

2. If a police officer does not have a 'real relationship' to the case, he must be viewed in light of the traditional test for qualifications for jurors with the same scope of appellate review.

Id. at 169, 383 A.2d at 876-7. "The [traditional] test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor." Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. den., 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986).

Juror Driscoll did not have a "real relationship" to this case and thus would not fall under the first tier of the Colon, supra, test (N.T. 12/2/83, pp. 9-10). During a side bar voir dire, Mr. Driscoll stated that his appraisal of the evidence in a case where the defendant is charged with burglary would be unaffected by his ten or twelve years of experience investigating burglaries and other crimes. Further, the juror responded that his prior experience would not affect his decision with respect to the defendant/appellant (N.T. 12/2/83, pp. 4-7). Therefore, based on the record, we find no abuse of discretion on the trial judge's part in qualifying Juror Driscoll. Colson, supra.

Lastly, appellant argues that because the prosecutor engaged in misconduct, asked objectionable questions, made inappropriate comments and advanced improper arguments to the jury throughout the course of the entire trial and in closing argument to the jury, he was deprived of a fair trial. In...