Com. v. Zeitlen

• Decision Date: 27 August 1987
• Parties: COMMONWEALTH of Pennsylvania v. Woodrow J. ZEITLEN, Appellant.
• Court: Pennsylvania Superior Court

Page 900

530 A.2d 900

366 Pa.Super. 78

COMMONWEALTH of Pennsylvania v. Woodrow J. ZEITLEN, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 26, 1987.

Filed Aug. 27, 1987.

[366 Pa.Super. 79] Peter B. Foster, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy Dist. Atty., Harrisburg, for Com.

Before BECK, KELLY and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from the judgment of sentence for violations of conditions of probation. Appellant contends that the lower court erred in (1) admitting testimony that violated the physician-patient privilege; (2) failing to state on the record its reasons for the sentence imposed; (3) finding that the Commonwealth had met its burden of proof that he had violated the terms of his probation; and (4) admitting hearsay evidence. For the reasons that follow we order appellant to supplement his brief to address our Supreme Court's decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

On February 12, 1986, appellant was sentenced to a probationary term of twenty-three months. Conditions of probation included regular visits with a psychiatrist and the taking of certain prescribed medications. On August 25, 1986, the lower court conducted a revocation of probation hearing. At the conclusion of the hearing, appellant's probation was revoked and he was sentenced to one-and-one-half-to-seven-years incarceration. Appellant filed a timely petition to modify sentence which was denied by the lower court. This appeal followed.

Three of appellant's contentions raise challenges to the imposition of sentence. Before we can examine claims challenging the discretionary aspects of a sentence, we must first determine whether there is a "substantial question that the sentence imposed is not appropriate...." 42 Pa.C.S.A. § 9781(b). It has been the practice of this Court to make this determination based upon an evaluation of the substantive argument advanced by appellant in the brief. See Commonwealth v. Easterling, 353 Pa.Superior Ct. 84, 509 A.2d 345 (1986); Commonwealth v. Dixon, 344 Pa.Superior Ct. 293, 496 A.2d 802 (1985); Commonwealth v. Drumgoole, 341 Pa.Superior Ct. 468, 491 A.2d 1352 (1985); Commonwealth v. Nixon, 311 Pa.Superior Ct. 450, 457 A.2d 972 (1983); Commonwealth v. Love, 295 Pa.Superior Ct. 276, 441 A.2d 1230 (1982). Our Supreme Court has recently disapproved of this practice, holding that an appellant must set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence imposed. Commonwealth v. Tuladziecki, supra at 511-12, 522 A.2d at 19 (citing Pa.R.A.P. 2119(f)). The purpose of such a separate section is to provide this Court with adequate information upon which to base our decision to exercise, or decline to exercise, our discretion to consider claims of this nature.

Mindful of our duty to liberally construe the Rules of Appellate Procedure "to secure the just, speedy and inexpensive determination of every matter to which they are applicable", we order appellant to supplement his brief to address the concerns expressed in Tuladziecki. See Pa.R.A.P. 105. Such a supplement will ensure more effective appellate review, allow us to make a knowledgeable determination as to whether we should exercise our discretion in this matter, and curtail the needless plethora of ineffective assistance claims. The supplement shall be concise, and must be filed within thirty days of the date of this opinion.

Jurisdiction is retained.

KELLY, J., filed a concurring opinion.

BECK, J., filed a dissenting opinion.

KELLY, Judge, concurring:

I join Judge Hoffman's well-reasoned opinion. I write separately to express additional concerns pertaining to Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

I.

There currently exists considerable uncertainty as to the effect of the failure to file a brief, concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b), as required by Pa.R.A.P. 2119(f). As recent opinions of this Court clearly demonstrate, Commonwealth v. Tuladziecki, supra, is suspectible of varied interpretations. ¹ Further clarification of the Tuladziecki decision is clearly required; additionally, review of this overly complicated procedure by the Criminal Procedure Rules Committee would appear to be more than appropriate. Nevertheless, until Tuladziecki is clarified or the rule is revised, it is incumbent upon this Court to construe, apply, and enforce the rule as it now exists and is understood.

In the cases cited (see note 1), there appears to be some question as to whether the requirement of the separate, concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) required by Pa.R.A.P. 2119(f) is jurisdictional or procedural in nature. Compare Commonwealth v. Hawthorne, supra, and Commonwealth v. Lapcevich, supra (Del Sole, J., concurring). The distinction, however, may be more one of semantics rather than of substance.

Because timely notice of appeal acts as an initial petition for allowance of appeal in such cases, at least provisional jurisdiction is thereby acquired. See Pa.R.A.P. 902 & Note. However, as Commonwealth v. Hawthorne, supra, demonstrates, the failure to comply with Pa.R.A.P. 2119(f), has a substantive effect in that without at least "substantial compliance" with Pa.R.A.P. 2119(f) (see Commonwealth v. Lapcevich, supra; Commonwealth v. Bogden, supra ), the appellant/petitioner will be unable to meet his burden to establish the appearance of a substantial question regarding the appropriateness of the sentence imposed. See 42 Pa.C.S.A. § 9781(b).

While an opponent can certainly waive a procedural defect such as this, this Court is clearly not at liberty to ignore the defect and proceed to review of the merits of the claim. This Court stated in Commonwealth v. Hawthorne, supra:

In light of the unequivocal terms in which the Supreme Court views compliance with our Rules of Appellate Procedure, in this area of discretionary appeals ('precise' adherence is to be the benchmark and not the exception), we deem the Commonwealth's failure to provide anywhere in its brief a 'concise statement of reasons' for contesting the discretionary aspect of the sentence to be fatal to its appeal.

The fact that the defendant did not raise specifically the matter in her brief is overridden by this Court's obligation to assure itself that our rules of court are followed. See e.g., Commonwealth v. Drew, 353 Pa.Super. 632, 510 A.2d 1244 (1986); Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1984); Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984); Commonwealth v. 527 A.2d at 564 (footnote omitted).

Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982). Such policing of an appellant's brief is now re-enforced by the remarks and ruling of the Court in Tuladziecki, supra.

Under such analysis, a petition for allowance of appeal of discretionary aspects of sentence may be quashed, dismissed, or denied based upon the existence of a substantial procedural defect. See Pa.R.A.P. 902; Pa.R.A.P. 2101. Nonetheless, whether the petition for allowance of appeal is quashed based upon a jurisdictional defect, or it is quashed, dismissed, or denied based upon a substantial procedural defect, the effect on an appellant is the same--appellant is denied review of the merits of his challenges to the discretionary aspects of the sentence imposed based solely upon the failure of counsel to comply with Pa.R.A.P. 2119(f).

I find the Hawthorne analysis compelling up to the point that it concludes that the appeal from the discretionary aspects of sentence must be quashed. It is at that point, I believe, that Judge Hoffman's suggestion--that we simply enforce the rule and direct compliance with Pa.R.A.P. 2119(f)--carries the weight of reason.

II.

Judge Hoffman bases the instant order upon "our duty to liberally construe the Rules of Appellate Procedure 'to secure the just, speedy, and inexpensive determination of every matter to which they are applicable....' " Supra at 901. He indicates that the supplement ordered will "allow us to make a knowledgeable determination as to whether we should exercise our discretion in this matter, and curtail a needless plethora of ineffective assistance claims." Supra at 901. I agree, and would add to his analysis as follows.

Heretofore, this Court had uniformly granted allowance of appeal, and a review of the merits of an appeal challenging the discretionary aspects of sentence, when the sentence imposed was outside the guidelines, upon a finding that appellant's argument raised a substantial question as to the reasonableness of the sentence. See Commonwealth v. Tuladziecki, supra, 522 A.2d at 22 (Larsen, J., dissenting) (citing cases); see also Commonwealth v. Porkorney, 360 Pa.Super. 384, 387, 520 A.2d 511, 512 (1987). Where, as here, an appellant may have relied upon previous appellate decisions interpreting a procedural rule, it would be inequitable to dispose of the appeal based upon a new interpretation of the rule without extending to appellant an opportunity to correct any omission which may have been caused by reasonable reliance upon our former practice.

Moreover, this Court has generally exercised great forbearance in exercising its discretionary powers under Pa.R.A.P. 902 and Pa.R.A.P. 2101 to quash briefs and dismiss appeals. Only on a few occasions, in extreme cases, and with great reluctance has this Court ordered criminal appeals quashed because of counsel's failure to comply with rules of appellate procedure. See Commonwealth v. Drew, 353 Pa.Super. 632, 633, 510 A.2d 1244, 1245 (1986) (citing cases); Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

In Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982), we explained:

The Court...