# Commonwealth v. Leaman

> Superior Court of Pennsylvania · April 13, 1978 · 255 Pa. Super. 481

URL: https://www.frixlaw.com/law-library/cases/9699417

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Roger D. LEAMAN, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** April 13, 1978
- **Citations:** 255 Pa. Super. 481; 388 A.2d 330; 1978 Pa. Super. LEXIS 3000
- **Precedential status:** Published
- **Opinion:** Dissent by Voort
- **Judges:** Van Voort, Watkins, Jacobs, Hoffman, Cercone, Price, Van Voort Spaeth, Van Voort Jacobs
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699417

## Opinion text

VAN der VOORT, Judge,
dissenting:
On June 22, 1975, Pennsylvania State Police observed several drag races on a public highway in Lancaster County. The police officers noted the license number of a car which was later traced to appellant Roger D. Leaman. Appellant was charged with three counts of drag racing and with several other traffic offenses. On November 7, 1975, appellant filed an Application to Quash Indictments, arguing the unconstitutionality of § 1212 of the Motor Vehicle Code. 1 This application was denied on November 13, 1975, and appellant was tried on November 21, 1975 before a judge sitting without a jury. Appellant was found guilty and was sentenced to pay a fine and serve 15-30 days in jail, and was placed on probation for one year. Appeal was taken to our Court from the judgment of sentence.
Appellant raises what would appear to be a meritorious argument, the unconstitutionality of § 1212 of the Vehicle Code. 2 This section provides that the owner of a motor vehicle will be presumed to have been driving his vehicle at the time the vehicle was observed violating any provision of the Code. At appellant’s trial, the parties stipulated that the Commonwealth had established a prima facie case against appellant, 3 but that the identity of appellant as the driver of the vehicle observed drag racing was established only by this presumption in § 1212. Section 1212 was declared unconstitutional by our Supreme Court in Common *499 wealth v. Slaybaugh, 468 Pa. 618 , 364 A.2d 687 (1976). Appellant raised the issue of the unconstitutionality of this section in his Application to Quash Indictments. He may also have raised this issue orally after trial (the court en banc discussed the issue in its opinion); however, there is no indication in the official record that he preserved the issue in written post-trial motions. Appellant’s written Motion in Arrest of Judgment and Motion for New Trial raise only the standard insufficiency of evidence claims. Under Commonwealth v. Blair, 460 Pa. 31 , 331 A.2d 213 (1975), an appellant’s failure to preserve an issue in written post-trial motions will ordinarily result in a waiver of the right to raise that issue on appeal. 4 Under Commonwealth v. Schroth, 458 Pa. 233 , 328 A.2d 168 (1974), however, in order for such a waiver to be effective, the record must affirmatively demonstrate that the defendant was aware of his right to file post-trial motions.
In the case before us, the lower court found appellant guilty, indicating that its decision was based on § 1212 of the Vehicle Code and the presumption that the owner of a car was driving it at the time of a violation of the Code. At the close of the trial, appellant’s attorney stated: “The defense, at this time, would enter a motion for a new trial and arrest of judgment.” The court responded: “I direct you not only to file the motions in writing within seven days but get that stipulation signed before you forget about it, the waiver of jury trial.” The proceedings then concluded, with no advice that only the grounds contained in post-trial motions could be raised on appeal. Under these circumstances, I believe it is impossible for us to determine whether appellant knowingly and intelligently waived the right to challenge on appeal the constitutionality of § 1212 of the Vehicle Code.
In Commonwealth v. Miller, 469 Pa. 370 , 366 A.2d 220 (1976) and Commonwealth v. Williams, 459 Pa. 589 , 330 A.2d *500 854 (1975), our Supreme Court determined from the record that the defendants had most likely been misled by the lower court and therefore could not have knowingly and intelligently waived their appeal rights. In both cases, the Supreme Court remanded for filing of post-trial motions nunc pro tunc. In Schroth and in Commonwealth v. Tate, 464 Pa. 25 , 346 A.2d 1 (1975), the Supreme Court was unable to determine from the record whether or not the appellants had knowingly and intelligently waived the right to file post-verdict motions. In these cases, the Supreme Court remanded for a determination of whether or not the waiver was knowing and intelligent. Since there exists an inability to determine whether or not appellant in the case before us knowingly and intelligently waived his appeal rights, in accordance with Schroth and Tate I would remand this case to the lower court. If the lower court determined that appellant did not knowingly and intelligently waive the issue of the unconstitutionality of § 1212, I believe the court would be required to file written post-trial motions and thereafter take appropriate action on the motion by discharging appellant. If the lower court on a remand found that appellant did knowingly and intelligently waive the issue of the unconstitutionality of § 1212, I believe the judgment of sentence would properly be reinstated and thereafter stand affirmed.
JACOBS, President Judge, joins in this dissenting opinion.
. Act of April 29, 1959, P.L. 58, § 1212, as amended July 13, 1959, P.L. 534, § 1, 75 P.S. § 1212.
. The Commonwealth concedes in the one sentence brief filed with our Court that appellant should be discharged.
. In his Opinion JUDGE HOFFMAN states that he believes “that the Commonwealth failed to produce sufficient evidence to convict appellant of the crimes charged.” This assertion is contrary to the stipulation made by both parties that the Commonwealth has in fact made out prima facie cases and the defendant offered no evidence.
. See Commonwealth v. Bailey, 463 Pa. 354 , 344 A.2d 869 (1975); Commonwealth v. Terry, 462 Pa. 595, 602, n.3 , 342 A.2d 92 (1975); Commonwealth v. Fortune, 464 Pa. 367, 371, n.4 , 346 A.2d 783 (1975). See Henry v. Mississippi, 379 U.S. 443 , 85 S.Ct. 564 , 13 L.Ed.2d 408 (1965), on the right of the state courts to require strict compliance with state procedural rules.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699417. Public record. Not legal advice.