Summary
holding that, because record was devoid of any indication that defendant ever filed motion for change of venue, court remanded matter to trial court to determine whether motion was filed and disposed of by trial court, because court could not address defendant's argument that trial court had erred in failing to grant motion
Summary of this case from City of Phila. v. Dugs, Inc.Opinion
Argued September 22, 1978.
Decided November 2, 1978.
Appeal from the Court of Common Pleas, Criminal, Erie County, No. 1865, 1865-1 of 1976.
William J. Hain, Erie, for appellant.
Shad Connelly, Asst. Dist. Atty., Erie, for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.
OPINION OF THE COURT
Appellant, Edward Earl Hobson, was tried by a judge sitting with a jury in connection with the homicide of Steve Allen Burton. Appellant was found guilty of murder of the third degree. Post-verdict motions were denied and appellant was sentenced to eight to sixteen years imprisonment. This direct appeal followed.
Appellant first argues that the court below erred in failing to grant his motion for a change of venue. The record in the instant case is devoid of any indication that such a motion was ever filed and decided by the court below.
The case is remanded to the Court of Common Pleas of Erie County for a prompt determination of whether a motion for a change of venue was filed and disposed of by that court. See Pa.R.A.P. 1926. If such a motion was filed, then the record should be supplemented to include: (1) a true and correct verified copy of the motion for change of venue, (2) the transcript of any testimony and/or legal arguments presented in consideration of the motion, and (3) the transcript of any notes of the voir dire examination. If no motion for change of venue was filed, the court of common pleas should determine whether that issue has been waived. This remand shall not be construed to permit a relitigation of the motion for change of venue.
This court shall retain jurisdiction over the instant case. After the Court of Common Pleas of Erie County makes the above determinations and makes any necessary additions to the record, this case shall forthwith be returned to this court. See Pa.R.A.P. 1926.