Commonwealth v. Jones

NIX, Justice,

concurring.

The majority opinion states in footnote 1 that issues which appellant failed to include in written post-verdict motions are preserved for review because they were set forth in a brief which was presented to, but not filed with, the lower court.1 This memorandum does not constitute part of the record before us in this appeal, Pa.R.A.P. 1921.2 It is axiomatic that an appellate court may consider only matters that appear of record. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974). The brief which allegedly was presented to the lower court appears nowhere in this record, nor is there reference to it in the lower court’s opinion. Assuming the existence of this phantom brief, the majority has failed to suggest how the members of this Court are to inspect it in order to determine what issues were in fact raised therein. Thus, even if I were to accept the existence of this brief, it provides no assistance in determining the question at hand, since its contents are not available for our consideration. Commonwealth v. Allen, 478 Pa. 342, 345, n. 6, 386 A.2d 964, 966, n. 6 (Opinion in Support of Affirmance by Nix, J., joined by O’Brien, J.).

Appellant’s boiler-plate written post-verdict motions challenging only the sufficiency of the evidence were filed on *181June 30, 1975, more than five months after this Court announced in Commonwealth v. Blair, 460 Pa. 31, 33, n. 1, 331 A.2d 213, 214, n. 1 (1975) that thereafter issues not raised in written post-verdict motions in accordance with Pennsylvania Rule of Criminal Procedure 1123(a) would not be considered by our trial and appellate courts. Accordingly, I believe all issues other than sufficiency of the evidence were waived, even though the court below considered the issues in its opinion, Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978).

While I thus concur in the result reached by the majority, I believe that its failure to find these issues waived can only result in exacerbating the confusion which already exists as to waiver for non-compliance with Rule 1123(a). That confusion has its roots in Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), wherein a four-member majority of the Court created an exception to Blair, in cases in which a written brief or memorandum was filed with the lower court. I have previously set forth my belief that this exception, which was applied again in Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977), would lead to confusion among trial attorneys and lower courts, and foster disrespect for the rules of this Court. Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978) (Dissenting Opinion by Nix, J.). The majority’s result today provides a perfect illustration.

In order to find that the issues in this case are not waived, the majority ignores not only the clear definition of the record on appeal promulgated by this Court in Rule of Appellate Procedure 1921, but also the principle, settled for centuries, that an appellate court may not consider matters outside the record on appeal.3 The majority’s explanation for why it does so fails even on its own terms. While it purports to be expanding the exception to Blair which was unwisely created in Grace, the majority has actually repudiated the reasoning upon which Grace was premised. The *182majority in Grace explicitly stated that it would consider the issues preserved because the memorandum filed by the appellant with the lower court “assured certainty in the record and assures us the issues were presented to the post-verdict motion court.” Id. 473 Pa. at 546, 375 A.2d at 723 (emphasis in original). However, in this appeal that dubious assurance of “certainty in the record” is absent. Until this Court resolves to apply its procedural rules firmly and consistently, we will continue to have rampant confusion in an area where it is of paramount importance to obtain clarity and certainty. See Pa.R.Crim.P. 2; Commonwealth v. Pugh, supra (Dissenting Opinion by Nix, J.).

. The only reference to the existence of the document appears in the Commonwealth’s brief filed with this Court.

. Pennsylvania Rule of Appellate Procedure 1921 states:

“The origina, papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.”

. See, e. g., the copious authority cited in Commonwealth v. Young, 456 Pa. 102, 115, n. 15, 317 A.2d 258, 264, n. 15 (1974).