author: JOHNSON, Judge:

text:
    679 A.2d 237
    COMMONWEALTH of Pennsylvania v. John A. EGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 6, 1996.
    Filed June 21, 1996.

      Dennis C. McAndrews, Media, for appellant.
    Jerome T. Foerster, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

      Before DEL SOLE, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

In this appeal, we consider whether this Court may address a claim that the trial court erred in failing to place its reasons for the imposition of sentence on the record where such a claim was not raised in a motion for modification of sentence. Because the trial court addressed this contention in its Opinion, and because an appellate court can address such a claim based upon a review of the sentencing transcript, we conclude that failure to raise the claim in a motion for modification of sentence does not result in waiver for purposes of appeal. Further, because we find that the trial court erred in failing to place reasons for its sentence on the record, we vacate the judgment of sentence and remand this matter for resentencing.

After arguing with his girlfriend, John A. Egan got out of his car and began walking down the sidewalk. He collided with Jeffrey Cooper (the victim). Egan then returned to the car, retrieved “the Club,” an anti-theft device, and proceeded to beat the victim about the face and head. Egan pleaded guilty to one count of aggravated assault, and the court sentenced him to a term of 51 to 102 months’ imprisonment. Egan filed a motion to modify sentence in which he alleged numerous grounds for such modification but did not assert that the court erred in failing to state, on the record, its reasons for imposition of sentence. The trial court denied his motion. This appeal followed.

On appeal, Egan argues that the trial court erred in failing to provide, on the record, reasons for the sentence imposed. Egan also asserts that this matter should be remanded for resentencing before a different judge due to certain remarks made by the sentencing judge.

Egan first contends that the court erred because it failed to state, on the record, reasons for the imposition of sentence. Egan’s brief contains a concise statement of the reasons relied upon for allowance of appeal as required by Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Initially, we address the Commonwealth’s assertion that this claim is waived because it was not properly preserved. We recognize that failure to raise a challenge to the discretionary aspects of sentencing in a motion for modification generally results in waiver of that claim for purposes of appellate review. Pa.R.Crim.P. 1410; Commonwealth v. Jarvis, 444 Pa.Super. 295, 663 A.2d 790 (1995). In Jarvis, we explained:

The version of Rule of Criminal Procedure 1410 applicable to determinations of guilt which have occurred after January 1, 1994 does not dispense with the need to preserve challenges to the discretionary aspects of a sentence by means of [a post-sentence motion requesting reconsideration/modification of sentence]. Although the new rule characterizes a motion to modify sentence as “optional,” the rule plainly states that only issues which were presented to the trial court before or during trial shall be deemed preserved for appeal in the absence of a post-trial motion. The modifications to Rule 1410 have not altered the requirement of Rule of Appellate Procedure 302[ (a) ] which states that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.”

Id. at 298, 663 A.2d at 791-92 (citation omitted). In the present case, Egan filed a motion for modification of sentence, but he did not challenge the court’s failure to state its reasons for imposition of sentence on the record in that motion. After the court denied his motion, Egan filed a notice of appeal. In his concise statement of matters complained of on appeal, Egan asserted that the court erred in failing to state, on the record, its reasons for imposition of sentence. In response, the court filed an Opinion stating that it was “under no obligation to explain the sentence since it was in the bottom of the standard range.” Trial Court Opinion, filed September 22, 1995, at 3. Apparently recognizing the error of this statement, the court filed a Supplemental Opinion stating that it was required to provide a statement of reasons for imposition of sentence, and that the requirement was satisfied by certain remarks the court made during a bail hearing. Supplemental Opinion, filed October 6, 1995, at 1. Because the trial court addressed Egan’s contention in its Opinions, we do not deem it waived for purposes of appeal. Commonwealth v. Montalvo, 434 Pa.Super. 14, 641 A.2d 1176 (1994).

We are aware that this Court has declined to review a challenge to the weight of the evidence raised for the first time on appeal even where the trial court has addressed the claim in its opinion. See Commonwealth v. Robinson, 450 Pa.Super. 428, 676 A.2d 249 (1996); Commonwealth v. Holmes, 444 Pa.Super. 257, 663 A.2d 771 (1995). We believe, however, that the cases applying this rule are distinguishable from the present case. Challenges to the weight of the evidence must be presented to the trial court. Commonwealth v. Hodge, 441 Pa.Super. 653, 658 A.2d 386 (1995). This is so because “ ‘[a]n appellate court by its nature stands on a different plane than that of a trial court.’ ” Commonwealth v. Brown, 538 Pa. 410, 436, 648 A.2d 1177, 1190 (1994), quoting Thompson v. City of Philadelphia, 507 Pa. 592, 599, 493 A.2d 669, 672 (1985).

“While there may be some legitimacy for a trial court, who [sic] has ... observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying upon a cold record, to exercise such a function.”

Commonwealth v. Karkaria, 533 Pa. 412, 418-19 n. 3, 625 A.2d 1167, 1170 n. 3 (1993), quoting Commonwealth v. Farquharson, 467 Pa. 50, 59-60, 354 A.2d 545, 550 (1976). Thus, “[a]n appellate court may only review the trial court’s exercise of discretion in granting or denying a new trial on grounds that the verdict was contrary to the weight of the evidence; it may not address ‘the underlying question whether the verdict is against the weight of the evidence.’ ” Hodge, supra, at 659, 658 A.2d at 389, quoting Brown, supra, at 435, 648 A.2d at 1189.

A claim that the court erred in failing to provide reasons for imposition of sentence, however, does not involve the same considerations as those involved in evaluating a weight of the evidence claim. Although a claim that the trial court failed to provide reasons for its sentence technically involves the discretionary aspects of sentencing, see Commonwealth v. Smicklo, 375 Pa.Super. 448, 544 A.2d 1005 (1988) (en banc), the trial court has no discretion in determining whether or not to place such reasons on the record. Rather, the Sentencing Code provides, in pertinent part, that “[i]n every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” 42 Pa.C.S. § 9721(b). “The failure to provide such a statement of reasons for the sentence imposed is reversible error requiring resentencing.” Commonwealth v. Johnson, 373 Pa.Super. 312, 329, 541 A.2d 332, 340, appeal denied, 520 Pa. 596, 552 A.2d 250 (1988). As an appellate court, we can review such a claim by making reference to the sentencing transcript. Unlike review of a challenge to the weight of the evidence, review of the present claim does not require an evaluation of witness credibility or any other matter uniquely within the province of the trial court. Accordingly, we will address Egan’s claim.

As stated above, the court is required to place, on the record, its reasons for imposition of sentence. 42 Pa.C.S. § 9721(b). The sentencing judge can satisfy this disclosure requirement by indicating, on the record, that he has been informed by a pre-sentence report. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988); Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915 (1994), appeal denied, 540 Pa. 576, 655 A.2d 509 (1995); Commonwealth v. Hlatky, 426 Pa.Super. 66, 626 A.2d 575 (1993), appeal denied, 537 Pa. 663, 644 A.2d 1200 (1994); Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992), appeal denied, 535 Pa. 615, 629 A.2d 1377 (1993).

In the present case, a sentencing hearing was held on July 12, 1995. Although the record indicates that a presentence report and sentencing memorandum were prepared and submitted to the court, the court made no indication that it had reviewed those documents. Its entire sentencing statement was as follows:

Sentencing under 60B of 1995 is that you pay the costs of prosecution, you serve a period of incarceration at the state level of not less than 51 months and not more than 102 months. There is no fine, restitution is left open, do you understand the sentence?

N.T., August 2, 1995, at 4. No reasons were provided to explain the court’s decision to impose a term of incarceration. The need for some indication as to the basis for the court’s imposition of a term of incarceration in this case is highlighted by the following circumstances: At the close of the sentencing hearing, the court indicated that it intended to defer sentencing for 24 months to allow Egan to obtain employment and pay the victim half of his weekly wage during that time period. N.T., July 12, 1995, at 59. The Commonwealth objected, arguing, among other things, that the deferred sentence proposed by the court might hamper the ability of the victim’s family to recover in a civil proceeding. Id. at 63. In response to the Commonwealth’s objection, the court stated:

[W]e’re going to pass this because of some questions that have come up by counsel with respect to the method of delaying sentence. The Court’s suggestion is I believe the questions are appropriate and I believe I should have the benefit of those answers before I finalize what my theory of sentence should be here. And so for that reason, I pass the formal imposition of sentence until August 2. Counsel are instructed as to what I expect of them in the [meantime] and they, of course, have already made their record and their record is closed with respect to the sentencing excepting for the additional information I have suggested. That’s it.

Id. at 67. The Commonwealth thereafter submitted a letter to the court indicating that the victim’s family intended to file a civil suit. Defense counsel submitted a response stating that Egan had no assets with which to satisfy a judgment, but that he was employed and would willingly make restitution to the victim. On August 2, 1995, the court imposed the term of incarceration stated above. The court’s departure, without explanation, from its original inclination to defer incarceration demonstrates the need for the court to place a statement of reasons for the sentence on the record or, at a minimum, to make reference to the presentence report. Because the court did not indicate that it had reviewed and considered the presentence report, and because the court did not provide, on the record, any reasons for the sentence imposed, we vacate the judgment of sentence and remand this matter for resentencing. Hlatky, supra; Jones, supra.

Next, Egan asserts that the resentencing proceeding should be assigned to a different judge. Because the sentencing judge has recently died, however, this issue is moot.

Based upon the foregoing, we vacate the judgment of sentence and remand this matter for resentencing.

Judgment of Sentence VACATED. Case REMANDED. Jurisdiction RELINQUISHED.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    679 A.2d 240
    COMMONWEALTH of Pennsylvania v. Anthony SPANO, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 18, 1996.
    Filed July 1, 1996.

      Rocco M. Nigro, Media, for appellant.
    William R. Toal, III, Assistant District Attorney, Media, for the Commonwealth, appellee.
    Before KELLY, JOHNSON and OLSZEWSKI, JJ.
   KELLY, Judge:

In these consolidated appeals, we are called upon to determine whether the trial court properly directed that appellant be removed from the elected office of constable of the Borough of Darby following his conviction of indecent assault. We affirm the judgment of sentence imposed for appellant’s indecent assault conviction; however, we hold that pursuant to 42 Pa.C.S.A. § 722, we are without subject-matter jurisdiction to review appellant’s appeal from the trial court’s order removing appellant from public office. Therefore, we transfer this portion of the case to the Supreme Court. Hence, we affirm in part and transfer in part.

The relevant facts and procedural history have been aptly set forth in the trial court opinion as follows.

On May 13, 199[4], Defendant, Anthony Spano, went to 106 Chestnut Street in the Borough of Darby, in his capacity as a duly-elected constable, to serve an arrest warrant upon Bonnie Grove for Disorderly Conduct and Public Drunkenness. (N.T. 6-6-95, p. 93). However, upon Mr. Spano’s arrival, he was told that Ms. Grove left the premises together with her boyfriend, Jimmy Lassiter, to go to the hospital, as Mr. Lassiter required medical attention. (N.T. 6-6-95, p. 91-92). Consequently, only Jason Herzfelt and the victim, Kandi Corbin, were left in the house -with Mr. Spano. Next, Mr. Spano gave Mr. Herzfeld money and arranged for him to leave the house to get pizza. (N.T. 6-6-95, p. 91-92). The victim testified that after Mr. Spano was alone in the house with her, he joined her on the couch and proceeded to kiss and lick the victim’s face and fondle her breasts without her consent. (N.T. 6-6-95, p. 99-102, 104, 113). He did this while in uniform acting as a constable, and notwithstanding the victim’s requests that he stop. (N.T. 6-6-95, p. 101). He was wearing his badge and had a gun strapped to his side. (N.T. 6-6-95, p. 94). This action was interrupted when two young neighbors, Dennis Krapf (age 13) and Gary Krobath (age 15), arrived at the residence, looked in the window, and saw Defendant seated with the victim. (N.T. 6-6-95, p. 105, 164, 178). As they entered, both of the aforementioned individuals waited to make sure that they were not interrupting anything. (N.T. 6-6-95, p. 176-180). In fact, they testified that they entered only after they were certain the victim was not participating in the encounter. (N.T. 6-6-95, p. 176-180). They further testified that they saw the Defendant pull his hand out from under the victim’s shirt very quickly as they entered. (N.T. 6-6-95, p. 164, 178). Additionally, they testified that the Defendant got up quickly and backed away from her in order to make it appear as though nothing had occurred. (N.T. 6-6-95, p. 164-66,178-180).
The victim reported the attack to Officer Frank Gentilini of the Darby Borough Police Department shortly thereafter, but said that she did not want a formal report made because she felt that her story would not be believed. (N.T. 6-6-95, p. 111-12, 227).
The testimony further established that on or about June 16, 199[4], Constable Spano proceeded to the same address. This time, he had a warrant for Kandi Corbin charging underage drinking, which he failed to present. (N.T. 6-6-95, p. 114, 116, 125). The Defendant proceeded to the victim’s bedroom and used this warrant as leverage against Ms. Corbin in his effort to gain sexual gratification which included touching the victim’s thigh and breasts and kissing the victim’s cheek and neck. (N.T. 6-6-95, p. 117-22). Ms. Corbin at no time consented to this conduct. (N.T. 6-6-95, p. 118). On the same evening of the aforementioned incident, Ms. Corbin went to the police Department and filed formal charges against the Defendant. (N.T. 6-6-95, p. 122).
The Defendant was convicted of one count of Indecent Assault by a jury on June 7, 1995. The Defendant was sentenced by this Court relative to the aforesaid conviction of Indecent Assault to six months home monitoring and community service on July 12, 1995. (N.T. 7-12-95, p. 22-23). Additionally, on July 19, 1995, this Court entered an order removing the defendant as a duly-elected constable.

Trial Court Opinion at 1-3.

On July 24, 1995, appellant filed a timely notice of appeal with regard to his judgment of sentence entered July 12,1995. On August 17, 1995, appellant filed a timely notice of appeal regarding the order entered on July 19, 1995 removing him as a duly elected constable of the Borough of Darby. The parties entered into a stipulation for consolidation of these two appeals. We accepted the stipulation.

Appellant raises the following issues on appeal:

1. WHETHER THE TRIAL JUDGE’S FAILURE TO DEFINE THE WORDS “INDECENT”, “ASSAULT”, AND/OR “CONTACT” IN HIS INSTRUCTIONS TO THE JURY RELATIVE TO THE CHARGE OF INDECENT ASSAULT WAS SO FUNDAMENTALLY INADEQUATE SO AS TO REQUIRE A REVERSAL OF THE DEFENDANT’S CONVICTION?
2. WHETHER THE CONSTITUTIONS OF THE UNITED STATES OF AMERICA AND THE COMMONWEALTH OF PENNSYLVANIA REQUIRE THAT A HEARING BE HELD ON A PETITION SUBMITTED TO THE COURT TO REMOVE A CONSTABLE PURSUANT TO 13 P.S. SECTION 31?
3. WHETHER OR NOT THE RECORD HEREIN CONTAINS SUFFICIENT FACTS TO REMOVE THE DEFENDANT FROM OFFICE AS A DULY ELECTED CONSTABLE PURSUANT TO 13 P.S. SECTION 31?

Appellant’s Brief at 4.

Appellant first appeals his judgment of sentence (No. 2931 Philadelphia 1995) claiming an error in the jury charge. Preliminarily, we note that appellant failed to object to the trial court’s jury charge. Under Pa.R.App.P. 302(a), “[IJssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.App.P. 302(a). In Commonwealth v. Schierscher, 447 Pa.Super. 61, 668 A.2d 164 (1995), we held that because the appellant in that case failed to object to the jury charge before the jury retired for deliberation, the issue raised was not preserved for appellate review. Commonwealth v. Schierscher, supra at 72, 668 A.2d at 169. In Commonwealth v. Byrd, 409 Pa.Super. 611, 598 A.2d 1011 (1991), we held that a party must specifically object to a charge when given at trial in order to preserve any claim of error for appellate review. Commonwealth v. Byrd, supra at 613, 598 A.2d at 1012.

Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure specifically addresses the failure of an appellant to object to the jury instructions. Under Pa.R.Crim.P. 1119(b), “[n]o portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate.” Pa.R.Crim.P. 1119(b). Commonwealth v. Kampo, 480 Pa. 516, 523, 391 A.2d 1005, 1008 (1978) (holding that where appellant did not object to omission in jury charge before deliberations, issue was not preserved for review); Commonwealth v. Martinez, 475 Pa. 331, 337, 380 A.2d 747, 750 (1977) (holding that where judge asked if counsel had any exceptions or additions to jury charge and counsel replied that he had none, appellant waived issue of alleged error in charge); Commonwealth v. Betz, 444 Pa.Super. 607, 619, 664 A.2d 600, 606 (1995) (holding that specific objection must be made before deliberations in order for challenge to jury charge to be preserved for appellate review).

In Commonwealth v. Matty, 422 Pa.Super. 595, 619 A.2d 1383 (1993), we held that the appellant waived the issue regarding jury instructions because he failed to object to a jury charge which he alleges to have suggested the verdict favored by the judge, the appellant thereby failing to preserve this issue for appellate review pursuant to Pa.R.Crim.P. 1119(b). Commonwealth v. Matty, supra at 601-02, 619 A.2d at 1386-87. Similarly, in Commonwealth v. Smallhoover, 389 Pa.Super. 575, 567 A.2d 1055 (1989), we held that where the appellant answered in the negative to the trial court’s inquiry as to whether appellant had any additions or corrections to the jury charge, appellant failed to preserve the issue for appellate review pursuant to Pa.R.Crim.P. 1119(b). Commonwealth v. Smallhoover, supra at 583-84, 567 A.2d at 1059.

Instantly, appellant has waived his first issue on appeal under both Pa.R.App.P. 302(a) and Pa.R.Crim.P. 1119(b). There is no evidence in the record of any objection to the jury charge on the part of the appellant. Conversely, the record does contain an exchange between the trial court judge and the attorneys in which the judge asks the attorneys if they have anything additional on the jury charge. N.T. 6/7/96 at 189. Both counsel for appellant and counsel for the appellee answered in the negative. Id. See Commonwealth v. Matt, 249 Pa.Super. 98, 104, 375 A.2d 777, 779 (1977) (holding that where court concluded its charge and asked counsel if they had anything to add and counsel made no objection to jury charge, appellant failed to preserve any objection to jury instructions).

Instantly, because appellant failed to make any objections to the jury charge, appellant has not properly preserved this issue for our review. Accordingly, this issue is waived. See Pa.R.Crim.P. 1119(b) and Pa.R.App.P. 302(a).

Moreover, this issue is meritless. Appellant contends that the instructions to the jury relative to the charge of indecent assault were insufficient and inadequate in that the instruction did not define the words “indecent; assault,” and /or “contact.” Appellant further maintains that this deficiency was so fundamental as to render the guilty verdict improper. Id.

The Pennsylvania Supreme Court set forth our standard of review regarding jury instructions in Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995). “Only when there is an abuse of discretion or an inaccurate statement of the law is there reversible error.” Commonwealth v. Jones, supra at 517, 668 A.2d at 517 (citing Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990)).

In Commonwealth v. Jones, supra, the Court held that when reviewing a challenge to a part of a jury instruction, the Court must review the jury charge as a whole to determine if it is fair and complete. Commonwealth v. Jones, supra (citing Commonwealth v. Saunders, 529 Pa. 140, 602 A.2d 816 (1992)).

This review does not focus upon whether specific “magic words” were part of the charge. Commonwealth v. Saunders, supra 529 Pa. at 144, 602 A.2d at 818; Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983). Rather, it is the effect of the charge in its entirety that is controlling. Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990); Commonwealth v. Myers, 424 Pa.Super. 1, 621 A.2d 1009 (1993).

Commonwealth v. La, 433 Pa.Super. 432, 447, 640 A.2d 1336, 1344 (1994).

“A trial court has broad discretion in phrasing its charge and can choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Commonwealth v. Jones, supra. See also Commonwealth v. Hess, 446 Pa.Super. 222, 230-31, 666 A.2d 705, 709 (1995)(citing Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990)(holding that trial court has broad discretion in choosing its own wording so long as the law is clearly, adequately and accurately presented to jury)); Com monwealth v. Widmer, 446 Pa.Super. 408, 667 A.2d 215, 219-20 (1995)(citing Commonwealth v. Calderini, 416 Pa.Super. 258, 266, 611 A.2d 206, 210 (1992)(holding that a jury instruction given by one trial court will be upheld so long as it sufficiently and accurately apprises a lay jury of the law)).

In addition, even if we found that the trial court erred in instructing the jury, we can only grant relief if the error prejudiced the appellant. Commonwealth v. Blystone, 421 Pa.Super. 167, 180, 617 A.2d 778, 785 (1992) (citing Commonwealth v. Klinger, 369 Pa.Super. 526, 535 A.2d 1060 (1987)). See also Commonwealth v. Smallhoover, supra at 584, 567 A.2d at 1059.

Upon reviewing the entirety of the jury instructions, we find them to be a clear, adequate and accurate presentation of the law. With respect to the jury instruction as to the charge of indecent assault, the trial court clearly set forth the four elements that the Commonwealth needs to prove beyond a reasonable doubt. Moreover, contrary to what the appellant alleges, the trial court judge did define the terms “indecent contact” and “indecent assault.” N.T. 6/7/95 at 184-85. Furthermore, even if the trial court had erred, the trial court’s jury instructions as reflected in the record, did not prejudice the appellant. Accordingly, this issue is meritless.

Next, we turn to the two remaining issues raised by appellant in this appeal regarding his removal from the public office of constable of the Borough of Darby. We hold that we are without subject matter jurisdiction to entertain these claims and are compelled to transfer this appeal to the Supreme Court. We reach this conclusion for the following reasons.

The question of this Court’s jurisdiction over the subject matter can be raised at any time. Bernhard v. Bernhard, 447 Pa.Super. 118, 122-24, 668 A.2d 546, 548 (1995); In Re Estate of Cantor, 424 Pa.Super. 24, 26-27, 621 A.2d 1021, 1022 (1993); Barndt v. Barndt, 397 Pa.Super. 321, 325, 580 A.2d 320, 322 (1990). Neither silence nor agreement of. the parties will confer jurisdiction where it otherwise would not exist. Bernhard v. Bernhard, supra at 123, 668 A.2d at 548 (quoting Clay v. Advanced Computer Applications, 370 Pa.Super. 497, 504, 536 A.2d 1375, 1379 (1988) (en banc), modified, 522 Pa. 86, 559 A.2d 917 (1989)); In re Estate of Cantor, supra at 27, 621 A.2d at 1022 (citing Hafer v. Schauer, 429 Pa. 289, 239 A.2d 785 (1968) and United Carolina Bank v. Martocci, 416 Pa.Super. 16, 610 A.2d 484 (1992)). Therefore, even if a party fails to raise this issue, it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction. Barndt v. Barndt, supra at 325, 580 A.2d at 322; Hanik v. Pennsylvania Power Co., 308 Pa.Super. 352, 358, 454 A.2d 572, 575 (1982) (citing Cathcart v. Crumlish, 410 Pa. 253, 189 A.2d 243 (1963)); Marcus v. Diulus, 242 Pa.Super. 151, 363 A.2d 1205 (1976). Thus, the Superior Court may raise sua sponte the question of jurisdiction. Bernhard v. Bernhard, supra at 122-24, 668 A.2d at 548 (citing Clay v. Advanced Computer Applications, 370 Pa.Super. 497, 504, 536 A.2d 1375, 1379 (1988)(en banc), modified, 522 Pa. 86, 559 A.2d 917 (1989)); Rieser v. Glukowsky, 435 Pa.Super. 530, 535, 646 A.2d 1221, 1223; In re Estate of Cantor, supra.

Jurisdiction of the Superior Court is not conferred by filing a notice of appeal but arises only under the Constitution and the statutes of the Commonwealth. Pennsylvania Higher Ed. Assistance Agency v. Di Massa, 296 Pa.Super. 529, 442 A.2d 1177 (1982). The Superior Court has no power to enlarge its jurisdiction which is fixed by the legislature. Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981), affirmed, 498 Pa. 536, 448 A.2d 1379 (1982). The legislature has given the Supreme Court exclusive jurisdiction over all appeals from the final orders of the courts of common pleas in all cases involving the right to public office. 42 Pa.C.S.A. § 722(2).

The Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following classes of cases: ... (2) the right to public office. 42 Pa.C.S.A. § 722(2). See also Egan v. Mele, 535 Pa. 201, 204 n. 2, 634 A.2d 1074, 1075 n. 2 (1993)(vacating order of Commonwealth Court because only Supreme Court has jurisdiction of appeals from final orders of courts of common pleas involving right to public office); Commonwealth ex rel. Waltman v. Graczyk, 501 Pa. 244, 245, 460 A.2d 1098, 1099 (1983). A “public officer” is chosen by the electorate or appointed for a definite and certain tenure in a manner provided by law to an office whose duties are of grave and important character, involving some function of government, and to be exercised for the benefit of the public for a fixed compensation paid out of the public treasury. In re Stanley, 204 Pa.Super. 29, 201 A.2d 287 (1964). A borough constable is either an elected official, see 13 P.S. § 2, or in situations involving a vacancy, an appointed official, see 13 P.S. § ll. In that appellant is appealing a final order which removed him from public office, under 42 Pa.C.S.A. § 722(2), we are without subject matter jurisdiction to consider the merits of this direct appeal.

While we hold that the Superior Court is without statutory authority to entertain this appeal, we do not believe our lack of statutory authority necessitates the quashal of this appeal. This Court has the authority to transfer to the Supreme Court any cases which are directly appealable to the Supreme Court when the appeal has been erroneously filed in this Court. Under Pa.R.App.P. § 751(a), “[i]f an appeal or other matter taken to or brought in a court or magisterial district which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper court of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in transferee court on the date first filed in a court or magisterial district.” See also Commonwealth v. Harris, 195 Pa.Super. 8, 168 A.2d 761 (1961); Bily v. Board of Property Assessment, 157 Pa.Super. 252, 42 A.2d 322 (1945); Society of Mutual Help Christopher Columbus v. Lombardo, 155 Pa.Super. 67, 36 A.2d 825 (1944); Neubert v. Armstrong Water Co., 211 Pa. 582, 61 A. 123 (1904); see also In re Butler County Memorial Hospital, 27 Pa.Cmwlth. 561, 368 A.2d 849 (1976). Thus, we direct the transfer of the portion of this appeal (No. 3061 Philadelphia 1995) which pertains to appellant’s removal from public office to the Supreme Court.

Judgment of sentence is affirmed and appeal of issues raised in No. 3061 Philadelphia 1995 pertaining to the order removing appellant from the Office of Constable of the Borough of Darby as constable is transferred to the Supreme Court.

      . 18Pa.C.S.A. § 3126.

      . We note that in the interest of justice, we made an exception to Pa.R.App.P. 302(a) and reviewed appellant’s claim.

      . We note that the case cited above, In re Stanley 204 Pa.Super. 29, 201 A.2d 287 (1964), was an appeal involving a person who had been elected to serve as constable for the Forty-fifth Ward of the City of Philadelphia. However, this appeal did not involve appellant’s right to this office; rather, the issue on appeal was whether appellant was entitled to retain his private investigator’s license while continuing to hold the position of constable.

      . 13 P.S. §2:
      Election in boroughs and townships; term
      The qualified voters of every borough and township, and, where a borough is divided into wards, of every ward in the commonwealth of Pennsylvania, shall, on the third Tuesday of February, Anno Domini, one thousand eight hundred and ninety-six, and triennially thereafter, vote for and elect a properly qualified person for constable in each of said districts, and a properly qualified person for high constable in each of said boroughs, and the person so elected shall serve for three years.

      . 13 P.S. §11;
      Appointment in case of vacancy in cities, boroughs, wards, etc.
      Whenever a vacancy may occur in the office of constable in any borough, town, ward of any city, borough, or town or township in said Commonwealth by reason of failure to elect, failure to qualify, incompetency, death, resignation, removal, or for any other cause, it shall be the duty of the court of quarter sessions of the peace of the county in which such borough, city, ward, or township may lie, upon petition of not less than ten qualified electors residing in such borough, city, ward, or township to appoint a suitable person, who, upon being qualified as required by law, shall serve as the constable thereof for the unexpired term so vacant.


author: POPOVICH, Judge:

text:
    679 A.2d 775
    COMMONWEALTH of Pennsylvania, Appellee, v. Maurice SOLOMON a/k/a Maurice Soloman, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 10, 1996.
    Filed May 28, 1996.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County following appellant’s conviction on the charges of involuntary manslaughter, criminal conspiracy and carrying a firearm without a license. On appeal, appellant raises the following two issues, both of which are issues of first impression in the appellate courts of this Commonwealth: 1) Did the trial court err in failing to conduct a hearing prior to the sentencing of appellant to determine whether he was amenable to the juvenile system? 2) Did the trial court err in determining that appellant had the burden of proof to establish that he was amenable to the juvenile system once he was found not guilty of murder? After a careful review of the record, the parties’ briefs and the applicable law, we affirm.

The record discloses the following facts and procedural history: On March 4,1994, at approximately 5:20 p.m., Tronda Owens was shot and killed as she stood at the kitchen sink of her residence in Pittsburgh, Pennsylvania. Ms. Owens was preparing dinner for her family when a single .32 caliber bullet penetrated the kitchen window and entered the right temporal area of her head. Ms. Owens died instantly.

Earlier that day, Ms. Owens’ sixteen-year-old daughter, Carol Anne, was playing in the front yard of the family’s residence. Two of Carol Anne’s friends, Camille Cox and Shawna Kelly, were also in the family’s front yard. While Carol Ann was playing with her friends, appellant, who was seventeen years and eight months old, and John Payne approached the house. Both men were dressed in black clothing. Carol Ann and her friends were all dressed in “Blood” gang colors. When the three females saw the two men, they flashed “Blood” gang signs to them. The men responded by flashing the signs of their gang, Larimer Avenue-Wilkinsburg (LAW). Appellant and Payne then left the area.

Approximately twenty minutes later, Carol Ann and her friends were inside the family’s residence on the second floor. From an upstairs window, Carol Ann saw Payne pull a “black and long” gun from his pants. Carol Ann then decided to go outside of her residence. Upon doing so, she discovered that appellant and Payne were no longer in front of her residence. Carol Ann then proceeded to an Amoco gas station in her neighborhood. There, she saw appellant and fled the scene. Testimony established that the shooting of Carol Anne’s mother occurred shortly after this event.

Appellant was later arrested for the murder of Ms. Owens and was charged with criminal homicide, criminal conspiracy and carrying a firearm without a license. Appellant was tried by a jury and was convicted of involuntary manslaughter, criminal conspiracy and carrying a firearm without a license. Prior to sentencing, pursuant to 42 Pa.C.S.A. § 6322(b), appellant made an oral motion to transfer the case to juvenile court for sentencing. The trial court denied appellant’s motion without holding a transfer hearing. Appellant was then sentenced by the trial court to an aggregate term of four to ten years incarceration. This appeal followed.

Appellant argues that after he was convicted of a crime less than murder, pursuant to 42 Pa.C.S.A. § 6322(b), the trial court was required to hold á hearing to determine whether he was amenable to treatment in the juvenile system. We disagree.

42 Pa.C.S.A. § 6322(b) provides, in pertinent part, that “[i]f in a criminal proceeding charging murder the child is convicted of a crime less than murder, the case may be transferred for disposition to the division or a judge of the court assigned to conduct juvenile hearings.” (emphasis added). From the language of the act, it is clear that the trial court is not required to conduct a hearing to determine whether a case should be transferred to juvenile court for the sentencing phase. Rather, at the sentencing phase, the trial court may assign the ease for a juvenile hearing.

Appellant’s reliance on Commonwealth v. Reed, 435 Pa.Super. 304, 645 A.2d 872 (1994), and Commonwealth v. Morningwake, 407 Pa.Super. 129, 595 A.2d 158 (1991), for the proposition that the trial court was required to conduct a hearing in this case is misplaced. Both cases indicate that under 42 Pa.C.S.A. § 6322(a), the court shall conduct a hearing to determine if the juvenile should be tried within the juvenile system. However, in this case, appellant is not contesting the trial court’s failure to conduct a hearing prior to trial. Rather, appellant’s argument is that after conviction, but prior to sentencing, the trial court was required to conduct a hearing to determine whether appellant was amenable to the juvenile system. As previously discussed, pursuant to Section 6322(b), it was within the trial court’s discretion to conduct a juvenile hearing prior to sentencing. Accordingly, we must determine whether the trial court abused its discretion in failing to conduct a hearing in this case prior to sentencing to determine whether appellant was amenable to the juvenile system.

“[An abuse of discretion] may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based upon partiality, prejudice, or ill will.” Commonwealth v. Zoller, 345 Pa.Super. 350, 498 A.2d 436, 439 (1985). We can rule out partiality, prejudice, or ill will, as none appeared or was alleged in this case. This leaves us primarily with a consideration as to whether the trial court committed a gross abuse of discretion in the nature of a misapplication of the law.

A review of the Juvenile Act indicates that the legislature has not set forth explicitly the factors to be utilized by the trial court in determining whether a hearing should be held or a case transferred prior to sentencing pursuant to Section 6322(b). However, the statute clearly sets forth the factors to be considered in determining whether a case should be transferred to the juvenile system prior to trial pursuant to Section 6322(a). These factors are listed in Section 6355(a)(4)(iii)(A) and address the issue of when a defendant is amenable to the juvenile system. The Juvenile Act also provides that in determining whether a juvenile’s case should be transferred from juvenile court for a criminal proceeding, the factors set forth in Section 6355(a)(4)(iii)(A) are to be applied. Applying the rules of statutory construction found in the Statutory Construction Act, we find that it was the legislature’s intent that the trial court would also utilize the factors set forth in Section 6355(a)(4)(iii)(A) in determining whether a juvenile is amenable to the juvenile system prior to sentencing. See In re Pittsburgh Beer Corp., 216 Pa.Super. 71, 260 A.2d 493 (1969) (holding that Statutory Construction Act applies when statute does not define meaning of key terms). To hold otherwise would render tiie Juvenile Act internally inconsistent. See Commonwealth v. Ness, 341 Pa.Super. 225, 491 A.2d 234 (1985).

Accordingly, we must determine whether the trial court utilized properly the factors set forth in 42 Pa.C.S. § 6355(a)(4)(iii)(A) in denying appellant’s request for a transfer, and whether the trial court had sufficient information available to deny appellant’s request for a transfer without a prior hearing.

In its opinion, the trial court indicated that it considered the factors set forth in 42 Pa.C.S. § 6355(a)(4)(iii)(A) in denying appellant’s request for a hearing. In applying these factors to the present case, the trial court stated the following:

In the instant case, Solomon was a mere three months from age eighteen at the time of his offense, well over eighteen at the time of his sentence. A review of Solomon’s presentence report reveals a juvenile record that resulted in a substantial effort at rehabilitation. Moreover, Solomon demonstrated that he is not lacking in mental capacity, as he achieved average grades when he attended school, eventually earning a G.E.D. diploma. In short, no reasonable basis existed to transfer Solomon’s case to Juvenile Court, and he was therefore properly sentenced as the adult that he is.

Trial Court Opinion p. 7.

From the record, it is clear that prior to denying appellant’s request for a transfer, the trial court carefully examined appellant’s pre-sentence report. Contained within this report was information regarding appellant’s prior criminal history, family background, educational history, psychological history, age, information concerning prior attempts at rehabilitation and abuse of alcohol and narcotics history. Appellant concedes that this information was available and utilized by the trial court in denying his request for a transfer. However, appellant argues that given the benefit of a hearing, he would have been able to present additional evidence for the trial court’s consideration. Specifically, appellant argues that if the trial court would have conducted a hearing prior to denying his request for a transfer, “he would have been able to introduce additional evidence and witnesses not identified in the pre-sentence report.” Appellant’s Brief p. 21 n. 8.

We find that prior to sentencing, the trial court had sufficient information available to deny appellant’s request for a transfer without conducting a hearing. The trial court had available extensive information concerning the factors found in Section 6355(a)(4)(iii)(A), which we find the court properly used in determining that appellant was not amenable to the juvenile system. Appellant’s bald assertion on appeal that he would have been able to introduce additional evidence and witnesses if the trial court had conducted a hearing is insufficient. Appellant has failed to demonstrate specifically what evidence and which witnesses he would have presented at a hearing. We further note that at the sentencing hearing the trial court asked appellant and his counsel whether they had additional evidence or testimony to present to the court. Appellant and his counsel both replied in the negative. Accordingly, we find that the trial court exercised sound discretion in determining whether appellant was amenable to the juvenile system without conducting a hearing.

Appellant argues that assuming arguendo that the trial court was not required to conduct a hearing to determine whether appellant was amenable to the juvenile system, this Court must find that the trial court’s denial of his request for transfer was improper because the trial court based its denial on the assumption that appellant had the burden of proving that he belonged in a juvenile setting. Section 6322(b) of the Juvenile Act does not indicate whether the burden of proof is on the Commonwealth or the juvenile in this matter, and there is no case law directly on point. In addition, after reviewing the trial court’s opinion, we cannot conclude whether the trial court assumed that appellant or the Commonwealth had the burden of proving that appellant was amenable to the juvenile system. In any event, assuming arguendo that appellant is correct in asserting that the Commonwealth had the burden of proving that appellant should not be sentenced by the juvenile system, and, therefore, that the trial court erred in placing the burden of proof on appellant, we must still conclude that the trial court’s denial of appellant’s request for a transfer was not an abuse of discretion.

We have reviewed the record and the trial court’s opinion and find that the trial court carefully scrutinized appellant’s personal make-up, previous history and the nature and circumstances of the crimes committed by him. See Morningwake, supra (holding that the trial court must consider these factors in denying appellant’s petition to transfer prior to trial). Based on the information presented, the trial court determined that appellant had committed numerous prior crimes, that attempts at rehabilitation had failed and that appellant was mentally competent. The court further noted that appellant was eighteen years and six months old at the time of sentencing, making it unlikely that appellant could be effectively rehabilitated within the period of time within which Juvenile Court has jurisdiction. There was also evidence that appellant had been under the supervision of the juvenile system since 1986 and that he demonstrated worsening, rather than improving, behavior. While prior to 1993 a caseworker described appellant as cooperative and polite, by 1994 he was described as “non-compliant, oppositional and aggressive.” It was also reported by a caseworker that appellant intimidated his peers and dressed in gang-related colors. From this information, the trial court could properly conclude that appellant’s deteriorating behavior tended to demonstrate that appellant was not amenable to treatment in the juvenile system. See Commonwealth v. Rush, 522 Pa. 379, 562 A.2d 285 (1989). Accordingly, we find that the trial court’s refusal to transfer appellant’s case for sentencing in the juvenile system was not an abuse of its discretion.

For all of the foregoing reasons, the judgment of sentence is affirmed.

Affirmed.

      . Because appellant was under the age of eighteen when he committed the offense, he was considered a child pursuant to 42 Pa.C.S.A. § 6302(1).

      . We note that the Commonwealth argues that appellant has waived his present claim to a hearing by failing to raise and argue at trial the theory now urged on appeal. Pursuant to our supreme court’s holding in Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987), we find that appellant’s request for a transfer to the juvenile system prior to sentencing was sufficient to preserve the issue for appeal.

      . 42 Pa.C.S.A. §§ 6301 ei seq.

      . 1 Pa.C.S.A. §§ 1501 et seq.


author: CERCONE, President Judge Emeritus:

text:
    679 A.2d 779
    COMMONWEALTH of Pennsylvania v. Robert DOUGHERTY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1996.
    Filed June 11, 1996.

      Michael F. McCarthy, Philadelphia, for appellant.
    Lee Janiczek, Asst. Dist. Atty., Springfield, for Commonwealth, appellee.
    Before DEL SOLE and JOHNSON, JJ., and CERCONE, President Judge Emeritus.
   CERCONE, President Judge Emeritus:

This is an appeal from the judgment of sentence entered following appellant’s conviction at a trial de novo for the summary traffic offense of failing to obey a stop sign. We affirm.

The trial court has aptly explained the facts underlying this appeal in the following manner:

On August 10, 1994, a traffic citation was issued charging that Defendant Robert Dougherty, on August 5, 1994, violated 75 Pa.C.S.A. § 3328(b), when the Defendant failed to stop at the stop sign at the corner of Grandview Road and Parkview Drive in Springfield Township, Delaware County. A hearing was held on September 28, 1994 before District Justice Serení in Springfield Regional Court, and Defendant was sentenced to pay a fine and costs totalling Ninety-Seven Dollars and Thirty Cents ($97.30). Defendant appealed from said conviction to the Court of Common Pleas. On June 14, 1995, a hearing was held before the Honorable Kenneth A. Clouse, and the Court found Defendant guilty of the Summary Offense of Failure to Stop at Stop Sign and fined him Twenty-Five Dollars ($25.00) plus costs.

Trial Court Opinion filed October 24, 1995 at 1. Appellant’s timely notice of appeal followed on July 14, 1995. Appellant properly filed no post-sentencing motions. See Pa.R.Crim.P., Rule 1410 D, 42 Pa.C.S.A. (there shall be no post-sentence motion in summary case appeals following a trial de novo in the Court of Common Pleas).

The instant appeal identifies five issues for our consideration:

A. Rule 86(f) of the Rules of Criminal Procedure explicitly requires that charges arising under the Vehicle Code be dismissed absent testimony from a law enforcement officer.
B. Caselaw supports the reversal of a conviction for a Motor Vehicle Code violation where an officer did not witness the alleged offense.
C. Appellant was severely prejudiced as a result of permitting a police officer to commence criminal proceedings as a mere conduit for a private citizen.
D. Appellant was unfairly convicted on the testimony of a biased witness who’s [sic] testimony raised an abundance of doubt.
E. The trial court’s basis for conviction is fundamentally flawed.

We shall address these claims in the order raised.

Appellant first contends that Rule of Criminal Procedure 86(f) explicitly mandates the dismissal of charges arising under the Motor Vehicle Code unless a police officer appears at trial to testify against the defendant. We disagree with appellant’s interpretation of this Rule. The specific language at issue is as follows:

When a defendant appeals after conviction by an issuing authority in any summary proceeding, upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the appropriate division of the court of common pleas as the president judge shall direct. In appeals from summary proceedings arising under the Motor Vehicle Code (Title 75 of Pennsylvania Consolidated Statutes) or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. Unless the presence of the law enforcement officer is waived in open court by the defendant, the failure of the officer to appear and testify shall result in a dismissal of the charges. Pa. R.Crim.P., Rule 86(f), 42 Pa.C.S.A. (emphasis added). The plain language of the Rule indicates that a law enforcement officer must appear and testify in court only if he or she was the person who actually observed the offense charged while it was in progress. This rule is inapposite to a case in which the police officer never witnessed any infraction of the Motor Vehicle Code, but rather has issued a citation on the basis of information received from a witness.

In this case, Robert Gradle notified Officer Joseph Sadoff of the Springfield Township Police Department that on the morning of August 5, 1994, he was jogging in the area of Grandview Road and Parkview Drive in Springfield. At that time, Mr. Gradle observed appellant drive his Subaru through two stop signs. After interviewing Mr. Gradle, Officer Sadoff filed a citation charging appellant with failure to obey stop signs.

We agree with the trial court’s apt assessment of the circumstances:

[I]n the instant case, there was no police officer who observed the offense, only an officer who issued a citation on information received; in this instance, a lay witness actually observed the alleged offense. Rule 86(f), thus, is inapplicable to the instant situation. Said Rule, instead, is intended to compel the Appellant-Commonwealth to appear with the police officer who observed the alleged offense, where applicable, instead of having the Commonwealth request a continuance when the police officer fails to appear, thus making the parties come back to Court on another occasion.

Trial Court Opinion at 2. We agree with the trial court’s conclusion that because the officer who issued the citation to appellant was not a witness to the offense charged, the officer’s presence was not mandatory at appellant’s trial pursuant to Rule 86(f). Thus, appellant was not entitled to a dismissal on this basis.

Next, appellant contends that “caselaw supports the reversal of a conviction for a Motor Vehicle Code violation where an officer did not witness the alleged offense.” Appellant’s brief at 10. The thrust of the argument presented is that the issuance of the citation underlying appellant’s conviction was rendered proeedurally improper because Officer Sadoff never “appeared” to explain how and why he instituted the proceedings. Our research has uncovered no authority that either forbids a police officer to issue a citation on the basis of information received, or that requires the officer to appear at the defendant’s trial to explain why he issued a citation under such circumstances.

The Rules of Criminal Procedure state that criminal proceedings in summary cases shall be initiated either by: “(a) issuing a citation to the defendant; or (b) filing a citation; or (c) filing a complaint; or (d) arresting without a warrant when arrest is specifically authorized by law.” Pa. R.Crim.P., Rule 51, 42 Pa.C.S.A. The Rules contemplate that law enforcement officers shall ordinarily institute summary proceedings by citation. Pa. R.Crim.P., 52, 42 Pa.C.S.A. The “Comment” to Rule 55 indicates that a police officer is not required to directly witness the infraction underlying a particular citation:

A law enforcement officer may issue a citation based upon information that the defendant has committed a summary violation, which information may be received from a personal observation of the commission of the offense; a witness; another police officer; investigation; or speed-timing equipment, including radar. Contrast Commonwealth v. Hatfield, 307 Pa.Super. 454, 453 A.2d 671 (1982), decided before the adoption of previous Rule 70 (Defects in Form, Content, or Procedure — Summary Cases) and the 1983 revision of the previous Comment.

Pa. R.Crim.P., Rule 55, 42 Pa.C.S.A. (“Comment”). We agree with appellant that the explanatory “Comments to the Rules of Criminal Procedure” are not part of the Rules and have not been officially adopted or promulgated by the Supreme Court or the Superior Court. See “Comments” section preceding Chapter 1 of the Rules of Criminal Procedure. Nevertheless, the Superior Court is entitled to treat the “Comments” as effective aids and to consider them when interpreting the meaning of a particular Rule and any amendments thereto. Commonwealth v. Boyce, 304 Pa.Super. 27, 30 n. 3, 450 A.2d 83, 85 n. 3 (1982). Accord Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982). See also 1 Pa.C.S.A. § 1939 (approving the use of Comments and Committee Reports when construing statutory language). As already explained, we have found no authority for the proposition that a police officer who was not an eyewitness, but who issued a citation on the basis of information received from a witness, must attend the defendant’s trial and explain the hearsay statements and allegations underlying the citation.

Appellant also argues that the holding in Commonwealth v. Hatfield, supra, requires that this case should have been dismissed because the only eyewitness to the incident was a lay person rather than a police officer. The Hatfield court held that a summary case must proceed by private complaint if no police officer observed the infraction. However, as the Comment to Rule 55 states, Hatfield was decided before the adoption of previous Rule 70, (now Rule 90) which addresses defects in summary cases. See Commonwealth v. Glassman, 359 Pa.Super. 230, 518 A.2d 865 (1986), appeal denied, 515 Pa. 574, 527 A.2d 535 (1987) (explaining that Commonwealth v. Hatfield has been superceded by changes to the Rules of Criminal Procedure). The presently controlling authority is Rule 90, which provides as follows:

Defects in Form, Content, or Procedure — Summary Cases
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant.

Pa. R.Crim.P., Rule 90, 42 Pa.C.S.A. The “Comment” to Rule 90 explains the purpose and effect of the Rule in more detail:

This rule is intended to clarify when a defendant should be discharged or a case dismissed because of a defect; it eliminates disputes as to what is an informal defect or a substantive defect. As a condition of relief regardless of whether the defect is in form, content, or procedure, the court or issuing authority must determine that there is actual prejudice to the rights of the defendant.
A complaint, citation, summons, or warrant may be amended at any time so as to remedy any defect in form or content that is not prejudicial to the rights of the defendant. Nothing in this rule shall prevent the filing of a new complaint or citation and the reissuance of process. Any new complaint must be filed within the time permitted by the applicable statute of limitations.
Ordinarily, if a defendant does not raise a defect at the summary trial, the defendant cannot thereafter raise the defect as grounds for dismissal or discharge at a later stage in the proceedings. However, the intent is not to preclude a defendant from raising a defect for the first time after the summary trial when the interests of justice require it, as for example, when the defendant was not represented by counsel during the proceedings before the district justice or when the defendant could not reasonably have discovered the defect until after the conclusion of the summary trial.

Rule 90, supra (“Comment”).

The certified record in this case does not indicate whether appellant was represented by counsel at his summary trial. However, present counsel entered his appearance well before the trial de novo. Appellant thus had the opportunity to file a motion prior to trial challenging the allegedly faulty procedure followed in this case. Moreover, appellant could have protested the procedural posture of the case at any point during his trial. We have thoroughly inspected the quarter sessions file and have scrutinized the transcripts forwarded to this court. The certified record simply contains no indication that appellant ever timely objected to the fact that the case was initiated by citation rather than by a private citizen’s complaint. We must therefore conclude that Rule 90 prevents appellant from raising this claim for the first time on appeal. See Pa. R.A.P., Rule 302(a), 42 Pa.C.S.A. (issues not raised in lower court are waived and cannot be raised for the first time on appeal).

The thrust of appellant’s third argument is that Rule 90 does not apply to this case because appellant timely moved for dismissal of the charges pursuant to Rule 86(f) due to the absence of a police officer witness. Appellant invites us to hold that “the prosecution cannot possibly prove a stop sign violation ‘beyond a reasonable doubt’ if a law enforcement officer did not witness the alleged offense.” Appellant’s brief at 14. We agree with appellant that “the quantum of proof necessary to convict a defendant of a criminal violation is not a ‘defect in procedure,’ but rather a minimum evidentiary requirement placed on the prosecution.....” Id. However, appellant’s argument in this regard has confused a “sufficiency of the evidence claim” with a challenge to a procedural defect leveled at the manner in which the Commonwealth commenced this case. Whether the prosecution can sustain its burden of proof with regard to the elements of the crime charged is a separate question from whether the Commonwealth was procedurally correct in filing a citation rather than accepting a private criminal complaint to initiate the case. Rule 86(f) pertains to the former issue, while Rule 90 controls the latter claim. As we have fully addressed both questions, we shall not now revisit them.

Appellant also contends that the absence of Officer Sadoff deprived him of the right to confront the witnesses against him. However, appellant fails to acknowledge the fact that Officer Sadoff could not have testified as a witness against appellant since he never observed appellant driving on the day of the incident underlying this case. The most the police officer could have done is testify concerning his investigation of the citizen’s report which resulted in his filing the citation against appellant. Any testimony by Officer Sadoff concerning appellant’s alleged actions on the morning of August 5, 1994 would have been inadmissible hearsay. Mr. Gradle, the person who actually observed appellant driving, did testify at the trial and appellant was afforded ample opportunity to cross-examine him. We find no indication in the certified record that appellant was stripped of any constitutional rights.

Next, appellant argues that the verdict was against the weight of the evidence in that Mr. Gradle and appellant gave diametrically opposed explanations of the events underlying the charges at issue here. Ordinarily, a challenge to the weight of the evidence is waived unless it is presented in the first instance to the trial court. Commonwealth v. Brown, 538 Pa. 410, 434-40, 648 A.2d 1177, 1189-91 (1994). Preservation of this type of claim normally takes the form of a post-sentence motion. See Commonwealth v. Widmer, 446 Pa.Super. 408, 667 A.2d 215 (1995) (it was not adequate for appellant to raise his weight of the evidence claim in a statement of matters complained of on appeal because an election to file an immediate appeal rather than a post-sentence motion strips the trial court of jurisdiction to act on the case). However, a defendant convicted of a summary offense is precluded from filing any post-sentence motions. Pa. R.Crim.P., No. 1410 D, supra. Thus, appellant had no opportunity to preserve his weight of the evidence argument prior to filing his Statement of Matters Complained of on Appeal. It would be unjust to deprive appellant of the right to raise this issue on the grounds that he failed to file a motion he was not entitled to file. We note, moreover, that the trial judge explicitly addressed credibility and weight of the evidence at the close of appellant’s trial, and in his October 24,1995 opinion. Because appellant’s challenge to the weight of the evidence has been considered in the first instance by the trial court, we decline to find waiver.

This Court has recently explained the proper standard of review applicable to a challenge to the weight of evidence:

A true “weight of the evidence” claim contends the verdict is a product of speculation or conjecture. Such a claim requires a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Ables, 404 Pa.Super. 169, 590 A.2d 334 (1991) [, appeal denied, 528 Pa. 620, 597 A.2d 1150 (1991) ]. A decision regarding the weight of the evidence is within the sound discretion of the trial judge whose decision will not be reversed on appeal absent an abuse of that discretion. Commonwealth v. Fox, 422 Pa.Super. 224, 619 A.2d 327 (1993) [, appeal denied, 535 Pa. 659, 634 A.2d 222 (1993) ].

Commonwealth v. Beckwith, 449 Pa.Super. 433, 442, 674 A.2d 276, 281 (1996). Instantly, the trial court found that Robert Gradle provided credible testimony to the effect that on August 5,1995 at approximately 6:17 a.m., he observed appellant drive a dark gray Subaru XT through two separate controlled intersections without either slowing or stopping for visible stop signs. Trial Court Opinion at 2-3.

The trial judge originally addressed the question of credibility and weight of the evidence at the close of appellant’s trial:

Okay, I don’t need any argument. I view this as a matter of total credibility. It’s a question of Mr. Gradle says he ran the stop sign. He [appellant] says he didn’t. However, in this case I see no reason why any citizen that had no prior contact at all with this individual would come in, take the trouble, and make up something that he went through a stop sign. Accordingly, I find him credible and I find your client guilty.

'N.T. 6/14/95 at 33-34. We find no basis in the certified record on which we could conclude that the trial court committed an abuse of discretion in resolving appellant’s weight of the evidence claim in favor of the Commonwealth.

Finally, appellant contends that the trial court’s basis for conviction is “fundamentally flawed” because the trial judge improperly interpreted Rule of Criminal Procedure 86(f). We have already addressed this argument and have concluded that it provides no relief for appellant. We see no need to reiterate our prior analysis and decline to do so.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3323.

      . We are aware of appellant’s argument concerning the holding in Commonwealth v. Hightower, 438 Pa.Super. 400, 652 A.2d 873 (1995), appeal denied, 542 Pa. 632, 665 A.2d 467 (1995), which reversed a trial court’s grant of a continuance because the police officer who issued the summons failed to appear at the defendant's trial. The Hightower court concluded that the clear wording of Rule 86(f) requires charges to be dismissed if the officer fails to appear to testify, unless the defendant waives the officer's presence in open court. Id., 438 Pa.Super. at 401, 652 A.2d at 873-74. However, the police officer in Hightower actually observed the defendant speeding, stopped the defendant, and issued a summons directly to the defendant. Therefore Hightower is not dispositive in the instant case because Officer Sadoff was not present when appellant was driving. Rather, Officer Sadoff issued the citation after the fact on the basis of an eyewitness report supplied by another person.

      . Rule of Criminal Procedure 1410 D has dispensed with the need to file a post-sentence motion in summary case appeals following a trial de novo. However, this alteration in the Rules of Criminal Procedure has not eliminated the duty to preserve issues by raising them in the trial court before or during trial. See Pa.R.Crim.P., Rule 1410 B(c), 42 Pa.C.S.A.


author: CIRILLO, President Judge Emeritus.

text:
    679 A.2d 785
    Francis A. HANSON, Robert Thompson, John D. McCabe, Frank D. McMullin, David Nolan, Angelo A. Saggiomo, John Ingram and Charles Yeager, Appellants, v. FEDERAL SIGNAL CORPORATION, Navistar International Transportation Corp., Hahn Truck Sales & Service Corp., KME Fire Apparatus C/O Kovatch Mobile Equipment Corp., Mack Trucks, Inc., American La France, Division of Figgie International, Inc., General Motors Corp., and Sterling Precision Corp., Seagrave Fire Apparatus, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued April 30, 1996.
    Filed June 13, 1996.

      Martin R. Lentz, Philadelphia, for appellants.
    Jonathan B. Sprague, Philadelphia, for Federal Signal Corp., Navistar Intern. Transp. Corp., Hahn Track Sales & Service Corp., KME Fire Apparatus C/O Kovatch Mobile Equipment Corp.
    Before CERCONE and CIRILLQ, President Judges Emeritus, and DEL SOLE, J.
   CIRILLO, President Judge Emeritus.

Appellants [hereinafter Firefighters] are eight active or retired members of the Philadelphia Fire Department [PFD]. The Firefighters filed a complaint against Federal Signal Corporation and various other defendants, all manufacturers or distributors of sirens used by the PFD. The Firefighters sought damages and injunctive relief based on alleged hearing loss suffered as a result of defective sirens.

The named Firefighters’ amended complaint sought class certification pursuant to Pennsylvania Rule of Civil Procedure 1701. The class consisted of

all persons who, while serving as firefighters in the Philadelphia Fire Department, have been exposed to noise emitted from Federal Signal sirens manufactured, distributed, marketed, promoted, advertised, installed, or sold by Defendants, and have sustained permanent noise induced hearing loss and/or noise induced tinnitus, whose claims are not time-barred.

The trial court, by order of the Honorable Bernard J. Avellino, denied class certification. The court determined that the individual questions predominated over the common questions. The trial court also transferred the cases to the Day Forward (major jury) trial list. This appeal followed. We affirm.

The first matter we must address is this court’s jurisdiction, that is, whether an order denying class certification and transferring the cases to a trial list is an appealable order.

Prior to the 1992 amendments to the Pennsylvania Rules of Appellate Procedure, an order denying class certification was considered final and appealable. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). There, the Pennsylvania Supreme Court held that “orders denying class action status possess sufficiently practical aspects of finality to make them appealable.” Id. at 229, 348 A.2d at 736.

Arguably, there are two grounds for the decision in Bell— the finality aspect and the collateral order doctrine. As one commentator has noted, the theoretical basis for appealability of an order denying class certification is the collateral order doctrine. See Darlington, Pennsylvania Appellate Practice (2d ed. 1994) § 313:5. As Darlington indicates, this distinction is significant because the “final aspect” approach to determining appealability has been abandoned in the 1992 amendments to Pa.R.A.P. 341. The official note to amended Rule 341 states that an order denying class certification in a class action case is “no longer appealable as [a] final order pursuant to Rule 341” but may fall under Rule 312 (Interlocutory Appeals by Permission) or 313 (Collateral Orders). See Note, Pa.R.A.P. 341.

The July 6, 1992 amendments to the rules of appellate procedure eliminated the final aspect rule and sought to simplify determination of a final order under Pa.R.A.P. 341. See Bell v. State Farm Mutual Automobile Insurance Co., 430 Pa.Super. 435, 634 A.2d 1137 (1993). Rule 341 now defines a final order as any order that disposes of all parties or all claims. Pa.R.A.P. 341(b). See Bell v. State Farm, 430 Pa.Super. at 439, 634 A.2d at 1138-1139 (“Now it is stated in clear and unequivocal terms, counselling against piecemeal litigation, that a final order is any order that disposes of all claims or of all parties, ... ”).

Clearly, an order which denies class certification but transfers the case to the trial list does not fall within the simplified definition of a final order under Rule 341(b); the “final aspect” approach has been abandoned by the 1992 amendments and, therefore, an order denying class certification is no longer appealable as a final order under Rule 341. Such an order may be appealed, however, under the collateral order doctrine. Under the 1992 amendments, the collateral order doctrine was codified in Pa.R.A.P. 313.

Rule 313 provides:

(a) General Rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Ta.R.A.P. 313.

The collateral order doctrine is essentially an exception to the final judgment rule. The doctrine emerged in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and was adopted by the Pennsylvania Supreme Court in Bell, supra. In Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), our supreme court stated:

In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted.... We applied Cohen in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), where we said:
Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.

Pugar, 483 Pa. at 73, 394 A.2d at 545.

Collateral orders are appealable, and are recognized as final even if they do not dispose of all parties or claims. In order to qualify as a collateral order, the order must determine important rights collateral to the main cause of action, which rights would be irreparably lost if review were postponed until the termination of the case. See Pa.R.A.P. 313; see also Bell v. Beneficial Consumer Discount Co., supra; see also Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Kronz v. Kronz, 393 Pa.Super. 227, 574 A.2d 91 (1990); P.G. Publishing Company v. Commonwealth, 389 Pa.Super. 86, 566 A.2d 857 (1989); Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986) appeal denied, 515 Pa. 581, 527 A.2d 542 (1987).

Recently, in DiLucido v. Terminix International, Inc., 450 Pa.Super. 393, 676 A.2d 1237 (1996), this court addressed the question of whether an order denying class certification was appealable under the collateral order doctrine. We stated:

[T]he order denying class certification clearly is separable from and collateral to the cause of action for liability.... Next, we note that class actions were established to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate____ Undoubtedly, the opportunity to litigate a meritorious claim is a right that warrants review. Finally, if not immediately appealable, this right would be lost. Any persons who chose to proceed individually would eventually obtain their remedy and would have no reason to appeal the denial of certification, while those with small claims would be turned away without recourse.

Id., 450 Pa.Super. at 397-398, 676 A.2d at 1239. See Bell v. Beneficial Consumer Co., supra (refusing to allow appeals here would undermine the basic objectives of the class action rule; the class suit eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress for claims which would otherwise be too small to warrant individual litigation). Having found the elements of Pa.R.A.P. 313 were met, the DiLucido court held that an order denying class certification was appealable under the collateral order doctrine.

We turn now to the question of whether the trial court properly denied certification of the class. The decision of a trial court regarding class certification is a mixed question of fact and law. See Janicik v. Prudential Insurance Co. of America, 305 Pa.Super. 120, 127, 451 A.2d 451, 454 (1982). The trial court is vested with broad discretion in determining the definition of the class as based on commonality of issues and the propriety of maintaining the action on behalf of the class. Id. This court, therefore, “may not disturb the trial court’s order ‘unless the court neglected to consider the requirements of the rules [of civil procedure] or abused its discretion in applying them.’ ” Hayes v. Motorists Mutual Insurance Co., 370 Pa.Super. 602, 605, 537 A.2d 330, 331 (1987), alloc. denied, 520 Pa. 606, 553 A.2d 968 (1988) (quoting D'Amelio v. Blue Cross of Lehigh Valley, 347 Pa.Super. 441, 448, 500 A.2d 1137, 1141 (1985)).

Rule 1702 lists the prerequisites to a class action:

1. the class is so numerous that joinder of all members is impracticable;
2. there are questions of law or fact common to the class;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. the representative parties will fairly and adequately assert and protect the interest of the class under the criteria set forth in Rule 1709; and
5. a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

Pa.R.C.P. 1702.

Rule 1710(a) states:

(a) In certifying, refusing to certify or revoking a certification of a class action, the court shall set forth in an opinion accompanying the order the reasons for its decision on the matters specified in Rule 1702, 1708 and 1709, including findings of fact, conclusion of law and appropriate discussion.

Pa.R.C.P. 1710(a)(emphasis added). Judge Avellino did not file a 1710(a) opinion; instead, he stated the reasons for denying certification on the record at the conclusion of the certification hearing.

Judge Avellino stated on the record that the petitioners had met the first four requirements under Rule 1702. He determined, however, that the fifth requirement (fair and efficient method of adjudication of the controversy), which refers to Rule 1708, was not met. Specifically, Judge Avellino found that the Firefighters had not met the “commonality” requirement of Rule 1708(a)(1). Rule 1708(a)(1) states:

(a) Where monetary recovery alone is sought, the court shall consider
(1) whether common questions of law or fact predominate over any questions affecting only individual members;

Pa.R.C.P. 1708(a)(1). Judge Avellino stated:

After hearing the testimony that I have heard today, I am satisfied that the opposite is true; that in fact the individual questions predominate over the common questions.... The common features in this case are no different than the common features in an ordinary automobile accident case____ [A]ll these folks are firefighters, all of them have been exposed to occupational noises which at least arguably went beyond those that they should be exposed to. Once you get past that, the cases become hopelessly individualistic. For each person, a determination must be made whether he ... suffered a hearing loss, whether the hearing loss is nerve-induced as opposed to conductive, or mixed.... [T]he question then becomes further refined as to whether the siren was the substantial factor.

We agree with Judge Avellino’s assessment; the sole common fact is that each plaintiff was occupationally exposed to the fire siren. The remaining questions of fact and law are unique to each person’s circumstances, to wit, the type of hearing loss, the cause of the hearing loss, other contributing factors, such as age, heredity,- disease, and individual circumstances such as exposure to explosions or weapon fire, and diseases such as Lyme disease and syphilis. At the certification hearing, Herbert Kean, M.D., testified on cross-examination that various factors have to be considered when evaluating the cause or causes of hearing loss, including what people do when they are not working, and other noises to which they are exposed. Further, Dr. Kean testified that noise susceptibility differs with each individual and differs also according to sex and race.

Judge Avellino’s conclusion that the “commonality” requirement was not met was proper. Judge Avellino considered the applicable rules of civil procedure, see Pa.R.C.P. 1701 et seq., and properly applied the rules to this case. We find no abuse of discretion. Hayes, supra.

Affirmed.

      . Notably, a citation to Bell v. Beneficial Consumer is absent from the comment to Pa.R.A.P. 313. The fact that our supreme court in Bell adopted the collateral doctrine set forth by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), is not indicated in the official note to Rule 313, nor is the example of an order denying class certification listed as one of the various examples provided in that note. We acknowledge, however, that the list of examples of collateral orders included in the note is not exhaustive, and recognize also that the failure to cite to Bell in that note is not necessarily significant.

      . Judge Avellino’s statement does not comply with the requirements of Rule 1710(a). The statement, however, is adequate for purposes of our review.