Commonwealth v. Bailey

HOFFMAN, Judge,

concurring:

In light of the recent decision by this Court, sitting en banc, in Commonwealth v. Krum, 367 Pa.Superior Ct. 511, 533 A.2d 134 (1987), I am constrained to join in Judge Wieand’s Opinion.

For the reasons I have set forth in Commonwealth v. Zeitlen, 366 Pa.Superior Ct. 78, 530 A.2d 900 (1987) and Commonwealth v. Rivera, 365 Pa.Superior Ct. 361, 364, 529 A.2d 1099, 1100 (1987) (HOFFMAN, J., Concurring), it remains my opinion that the better course in these cases is to allow appellants to supplement their briefs to provide 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). In Commonwealth v. Krum, however, this Court, sitting en banc, held that an appellant’s failure to comply with the requirements of Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Commonwealth v. Krum, supra 367 Pa.Superior Ct. at 518, 533 A.2d at 138.

*626Despite my reservations, I am bound by the majority view in Krum, which has been echoed so forcefully by Judge Wieand in the instant case. Moreover, my primary concern at this point is in ensuring that similarly situated appellants in these cases be afforded the same treatment. I hope that the decision in Krum will put an end to the disparate treatment that appellants have received in this Court since the Supreme Court’s decision in Tuladziecki. Accordingly, I join in Judge Wieand’s determination that, in the instant case, the Commonwealth’s failure to object to the defect in appellant’s brief operates as a waiver of the defect. Moreover, turning to the specific claim raised by appellant, I also join in Judge Wieand’s determination that, upon examination of the record, appellant has failed to raise a substantial question regarding the appropriateness of his sentence. I therefore agree that we must disallow the appeal.