Opinion
No. 576 EAL 2005.
March 13, 2007.
Petition No. 576 EAL 2005 for Allowance of Appeal from the Order of the Superior Court at No. 1379 EDA 2004, dated 09/12/2005 vacating The order of the Court of Common Pleas Of Philadelphia at No. 9904-0267 1/1 and Remanding the case.
Prior report: 888 A.2d 5.
ORDER
AND NOW, this 13th day of March 2007, the Commonwealth's Petition for Allowance of Appeal in the above captioned matter is GRANTED. The Superior Court order is VACATED, and the judgment of sentence is REINSTATED.
Respondent's claim that the trial court failed to provide sufficient reasons for the sentence imposed on the record at the time of sentencing, upon which the Superior Court granted relief, is waived as respondent did not adequately preserve it. Counsel for respondent never raised such an objection at the violation of probation proceeding and did not file a post-sentence motion preserving the claim. Therefore, because respondent raised this issue for the first time on appeal to the Superior Court, the issue is waived. See Pa.R.A.P. 302(a) (issues not raised in lower court are waived and cannot be raised for the first time on appeal). Moreover, respondent's oral outburst at the proceeding cannot be construed as a proper objection by his counsel to the trial court's alleged failure to state on the record adequate reasons for the sentence imposed, and his ensuing assault on the trial judge and courtroom staff eliminated the court's opportunity to respond.
In addition, the Superior Court erred by sua sponte ordering the removal of the trial judge from respondent's resentencing. Commonwealth v. Whitmore, 912 A.2d 827, 2006 WL 3847624 (Pa. 2006). Given this Court's reinstatement of the judgment of sentence, however, that additional error is rendered moot.