summary of reasons for allowance of appeal at beginning of Argument section, before argument, constituted a sufficient compliance
How later courts described this case
- summary of reasons for allowance of appeal at beginning of Argument section, before argument, constituted a sufficient compliance
Written by the judges who cited it.
The opinion
DEL SOLE, Judge,
concurring:
I join the Majority Opinion in all respects. I write separately to address the issues raised relative to the application of Commonwealth v. Tuladziecki, 513 Pa. 508 , 522 A.2d 17 (1987).
Initially, one must realize that the Superior Court of Pennsylvania has jurisdiction to hear appeals involving the discretionary aspects of sentencing. 42 Pa.C.S.A. § 9781(b) provides discretionary jurisdiction in this court and the Supreme Court in Tuladziecki indicated the procedural steps necessary to invoke that discretionary review.
It is obvious that the method of raising the issue to this court for our exercise of discretion in reviewing the discretionary aspects of sentencing is procedural. As the majority stated in Tuladziecki :
“The Appellant properly preserved his challenge to this procedural violation, and for the reasons stated herein the Superior Court’s decision to overlook it must be vacated.”
Since the Supreme Court has clearly labeled the failure to properly follow the Appellate Rules in raising the issue of *354 the discretionary aspects of sentencing as procedural, such a defect would be waivable.
In the instant case, the Appellee did not object to the procedural irregularity in the Appellant’s brief in raising the issue. Therefore, in my view that issue is waived.
However, since I am of the view that the Tuladziecki requirements are procedural I also agree with the Majority that this court, in exercising its discretion to determine whether it would review the sentence, can waive technical procedural defects.