Commonwealth v. Waters

MANDERINO, Justice,

dissenting.

Today’s decision is the third this term in which this Court has deemed waived possibly meritorious assignments of error on the ground that the post-verdict motions filed by the *437defendant did not comply with Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). See, in addition to the present case, Commonwealth v. Roach, 477 Pa. 379, 383 A.2d 1257 (1978) and Commonwealth v. Barnes, - Pa. - , - A.2d - (1978) (J-330 of 1976, filed March 23, 1978). The majority holds these issues waived notwithstanding the fact that at the time post-verdict motions were filed in these cases, Blair was not yet published in the official state reporter. In one of the three cases, Commonwealth v. Barnes, the case had not been printed in either the official reporter or an unofficial publication. While I therefore find the majority’s holding of a waiver in Barnes especially harsh, see Commonwealth v. Smith, 468 Pa. 375, 380, 362 A.2d 990, 992 (1976) (Roberts & Manderino, JJ., dissenting), in my view a holding of waiver is unwarranted in any of the three cases.

In Blair, this Court stated that “[hjenceforth, issues not presented in compliance with [Pa.R.Crim.P. 1123(a)] will not be considered by our trial and appellate courts.” 460 Pa. at 33 n.1, 331 A.2d at 214 n.1. We did not say in Blair that “henceforth” meant from the date Blair was decided (January 27, 1975). We have held, however, that Blair did not work a waiver of claims not specifically raised in written post-verdict motions but orally argued to the post-verdict court where post-verdict motions were filed before Blair “served notice that compliance with Rule 1123(a) . would be mandatory.” Commonwealth v. Fortune, 464 Pa. 367, 371, 346 A.2d 783, 785 (1975) (emphasis added); see also Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975). The determinative issue in these cases, therefore, is when did Blair “serve notice” that strict compliance with Rule 1123(a) was required to preserve issues for appellate review.

The majority now holds that such notice was served on trial courts and the Pennsylvania Bar on the date Blair was decided; January 27, 1975. Through my brother Justice Roberts, I have already noted my disagreement with that result.

*438“It would be unrealistic to conclude that the members of the Bar are on notice of our decisions from the moment we decide them even though not actually reported until weeks later.” Commonwealth v. Smith, 468 Pa. 375, 380, 362 A.2d 990, 992 (1976) (Roberts, J., joined by Manderino, J., dissenting from per curiam affirmance).

Dissenting in Smith, Justice Roberts stated he would hold the Bar and trial courts responsible for our ruling in Blair as of the date it was reported in an unofficial publication, that date being March 1, 1975. In my view, no lawyer or trial court in this Commonwealth should be charged with notice of our new decisions until they appear in the official state reporter. That is the very purpose of having an official reporter — to give the legal community official notice of new court decisions. What appears in the various unofficial publications that report court decisions should not be deemed binding on the Bar or trial courts.

The official reporter in this Commonwealth is and always has been the Pennsylvania State Reporter. The larger law firms, better-equipped district attorneys office, and law offices near urban centers may have access to copies of the official reporter and various unofficial publications which are generally published before the official reporter. The smaller practitioners and trial courts in the less populous areas of the state, however, often cannot afford both, and thus solely rely, and rightly so, on the official state reporter. In my view, fairness dictates that we hold all members of the Bar and judiciary to the same standard, for to punish the financially disadvantaged for not having the unofficial but admittedly more recent publications works an injustice. While I agree with the majority that compliance with Rule 1123(a) enhances the quality of review at both the trial and appellate levels, invoking Blair to preclude review of possible . meritorious claims when Blair was not yet officially reported unjustifiably elevates this interest in the efficient administration of justice above the individual interest in appellate review of potential trial errors. This is especially true in light of our observation in Fortune, supra, and *439Bailey, supra, of the widespread former practice of post-verdict courts in accepting and ruling on oral motions not specifically set forth in written form. It is reasonable to conclude that this practice continued after Blair was decided if the trial court or trial counsel had not been “served notice” of the Blair directive.

The publication date for the volume of the Pennsylvania State Reporter in which Blair appeared (Volume 460) was May 7, 1976. Post-verdict motions in this case were filed on September 17, 1975, almost eight months before Blair appeared in the official state reporter. Similarly, in Commonwealth v. Roach, supra, and Commonwealth v. Barnes, supra, the filing of post-verdict motions predated Blair’s appearance in the official state reports. Hence, in all three cases, I would hold that Blair does not preclude appellate review of issues orally argued in post-verdict proceedings. I therefore dissent.