*1 Voort, J., dissents. Van der v. Bliss, Appellant. *2 Watkins, J., Submitted March P. 1975. Before Jacobs, Hoffman, Cercone, Price, Voort, Van der Spaeth, JJ. Walker,
Richard D. Defender, appellant. Public MacIntyre, Deputy Marion E. Attorney, District LeRoy Zimmerman, S. Attorney, District for Com- monwealth, appellee.
Opinion by J., Spaeth, 1976: March suggests The record this case trial appellate counsel and his both been have incompetent. particular We have that on the concluded presented quash appeal, facts the best solution is to suggestion with appoint to the lower court new represent appellant counsel to and to determine whether proceedings further are warranted.
I September grand On jury Dauphin County against six appellant. returned bills of indictment charged appellant Bills 1648 and 1649 having raped with sodomy 16-year-old-girl. and committed on a Bill 1688 charged having raped him with young woman who was in her pregnancy. 10th month of Bills 1709 and 1710 charged having kidnapped him and committed *3 involuntary upon eight- deviate sexual intercourse year-old girl. charged aggravated Bill 1711 him with battery 13-year-old girl. assault and of a And Bill 1754 charged having indecently exposed him with himself to teen-aged girls. two September
On appellant pleaded guilty not bills, January 31, 1974, to all of these and on the bills were called for trial. summarizing charges, Deputy
After the District Attorney stated to the court that Bill charge Commonwealth wished to move to dismiss the aggravated battery charge assault and to instead only simple attorney assault. The district went on to state that it was understanding appellant that would then plead guilty all to of the bills.
Appellant represented counsel from the County Dauphin Public Defender’s office. stated Counsel “agree plead guilty charges, did to the question with exception. concerning one A was raised No. When question 1710 ....” the court asked what the was, following colloquy ensued:
“MR. law GOOD: Under the of the definition of kidnapping person doing kidnapping is a is the removing unlawful of another a substantial distance period. or a substantial definition of what’s [Sic] specifically under substantial this new code has not been defined and distance we not feel was a do substantial distance.
THE COURT: What section is that?
MR. GOOD: It Your Honor. involves charge guilty pleading another which Mr. Bliss is my and at insistence it’s connected with the involun- tary sexual deviate intercourse.
THE COURT: Which is what? pleading guilty
MR. GOOD: Which he is to out of incident, the same and there is also a charge involved in there. Honor, very briefly,
MR. DISSINGER: Your young I girl upon facts think will reveal the whom involuntary sexual deviate intercourse was performed bicycle was taken from her into the car of transported the defendant approximately a mile. right. Well, THE going COURT: All we are not argue your going plead now. Is client guilty guilty kidnapping charge? to that or not to the You have to make a decision. plead guilty
MR. GOOD: We will and waive jury you trial and point. let decide it at this going
THE colloquy COURT: I’m to conduct the (NT 3-4.)1 defendant.” *4 Kidnapping 1. is defined as follows: — “(a) person guilty kidnapping A is of if Offense defined. unlawfully he removes another a substantial distance under the place found, circumstances from the where he is if or he unlawfully period place confines another for a substantial a isolation, following of with of the intentions: (1) reward, To hold for ransom or or as a shield or hostage.
(2) any felony flight To facilitate commission of or colloquy, After accepted appellant’s this the court pleas guilty of jury and his of waiver a trial on the kidnapping charge, testimony. Generally, and heard the procedure investigating followed was that the officer assigned particular to the case testified toas what had happened, confining testimony with the victim her identifying appellant person as the had who attacked her; on Bill charge, the assault the victim addition, described the incident. a confession was admitted Appellant testify. into evidence. did not by witness called his counsel was one of the investigating officers, confessing, who testified that when appellant “impressed had me with the fact that he was very, very agreed truthful.” This officer also “expressed] had desire that did help he need and wished to it.” obtain
Upon testimony, conclusion of the the court revoked bail presentence report. and ordered a When the district attorney outstanding reminded the court the “one matter is charge,” indictment the court stated: Well,
“THE COURT: I feel that the defendant is guilty charge, of that and I so find him. It seems to me that he did take a substantial distance [the child] felony to facilitate the commission a her of and held purpose. for the
thereafter. (3) bodily injury To inflict on or to terrorize the victim or another. public (4) performance by To interfere with any governmental political or officials of function. — (b) Grading. Kidnapping felony degree. the first A is meaning removal or confinement is within the of this unlawful force, or, deception, accomplished section if it threat or person age years case who of 14 or is under incompetent, accomplished if it of a without consent parent, guardian person responsible general or other 6, 1972, supervision of his P.L. No. welfare.” Act Dec. 334, §1, eff. June Pa.C.S. §2901. *5 352 Bliss, you pled guilty kidnapping I
Mr. not to and you guilty you found of it. Under the law have a motion in to file motion for new trial or a judgment you appeal arrest of want to that if you that, you it within decision. If care to do must do days. you appeal seven If file an within seven don’t days, you may appeal on the thereafter file charge. decision of the You are Mr. entitled to counsel. Good will you you represent appeal, continue to should desire to you and I’m sure he’ll talk to whether or not about you pursue any right.” should the matter further. All (NT 44.)
Appellant any post-trial did not file motions. brought On March was before sentencing. total, imposed court for the sentences were years years, fines, $5,000 to 50 and costs.2 22-1/2 objection There was no to of the sentences. The pre-sentence investigation summary report included a Harrisburg from Hospital suggesting State “a summary “[sjtaff schizoid character disorder.” said [appellant’s] felt that behavior demonstrated a desire hospitalized consequences remain escape charges wanting and that he was not sincere in psychiatric However, help. feeling it is the staff’s outpatient psychiatric part care should of the court easily recommendation as he is so led.” No witness sentencing called at proceeding behalf. intercourse), (involuntary 2. Bill 10 to 20 1709 deviate sexual years, $1,000, costs; years, (kidnapping), fine of and Bill 10 to 20 1710 1709; costs, $1,000, fine of Bill and consecutive to the sentence on bill costs, years, $1,000, (rape), 1688 10 fine of and consecutive 2-1/2 1710; years, (rape), the sentence on Bill Bill to 15 fine of 1648 7-1/2 $1,000, 1709; costs, and Bill Bill concurrent with the sentence on costs, (sodomy), years, $1,000, fine with the to 10 and concurrent costs, 1709; (indecent exposure), sentence on Bill Bill 1754 sentence costs, suspended; (assault battery), suspend- and Bill 1711 sentence ed. April 9, 1974, counsel, appellant, acting
On without petition Hearing filed a under the Post Act.3 Conviction page On the first petition of the he all identified of the charges against bills paragraph him. In 3 of the years he recited his total sentence of to 50 22-1/2 judge and noted he had been tried without a *6 jury, pleaded guilty. and had paragraph also In 4 he eligible stated that he was for relief had because he been right denied his representation by constitutional to competent paragraph counsel. In petition, 5 of the he stated: incompetency
“Counsel considered because reading after Penna. Crim. Law Crim. Proced. Manuel, 1973, pg. para 2. -sec Sentence for certain Sex Offenses. Petitioner now had realises he right opportunity heard, to have be be him, against confronted with the to have witnesses against him, the witnesses to have cross examine, and to offer evidence of his own. Com. v. Dooley, Super. 519,1967. My appointed court rights previous counsel did not of advire me these my entering plea guilty. a [S-ic]” paragraph petition, of the he stated: my understanding
“It is to that for the better administration of Justice and the efficient more punishment, people treatment and rehabilitation of mine, convicted of crimes such as and opinion I, large, of this court a that if constitute bodily public, threat harm to members of the or mentally ill, am considered in lien sentence now crime, imposed, each for this court sentence me having to a state institution an indefinite term a day my minimum of one and a maximum of natural 8, 1952, 1851.[4] life. Act of Jan. P.L. [Sic.]” 25, 1966, 1, 1966, (1965) §1, P.L. eff. March 3. Act of Jan. 1975). §1180-1, seq. (Supp. 19 P.S. et 4. 19 P.S. §1166. court denied April the lower
On and appointing petition without post-conviction accompanied its order hearing. The court without only stated The court “[t]he a memorandum. incompetent regarding allegation petition” was in the allegation in counsel; to the not refer the court did regarding the sentences of the paragraph accepting “[p]rior to imposed. then stated that The court colloquy was conducted .... plea an extensive defendant’s all of the colloquy and find that ... the We have reviewed by were covered .... complaint defendant areas of listed was that defendant then and now We were satisfied both knowingly voluntarily elected to fully and advised ... by stating: guilty.” plead The court concluded guilty he was good plead since reason to “defendant had perpetrator of clearly as the positively identified categorized only as that can series of sexual offenses atrocities;” witness called defendant that the fully and and how contriteness “to show defendant’s crimes;” and of these openly he admitted the commission *7 aggrieved by understandably that while “defendant fifty years ... twenty-two one-half the sentence of ninety- of a maximum sentence could have received he that as years to the fact court did not refer nine ....” The pleaded charge appellant had not kidnapping to the court; nor did the court guilty but had been tried regarding argument the trial refer to defense counsel’s charge. that with this 1974, filed 24, appellant’s counsel June
On Appeal without to File for Leave a Petition court granted Filing Fee. The Payment of the writ The 24, issued. certiorari and, a writ of also June “from taken appeal has been recites that then March Judgments [and dated of Sentence no There is of indictment].” identifies all of bills relief, post-conviction petition for appellant’s reference petition. denying that order the lower court’s nor to with us. appellant was filed In due a brief for course County Dauphin Counsel on the brief is from the Public person Defender’s office but is not the same as was appellant’s captioned “Appeal trial counsel. brief is from Memorandum and Order of the Lower Court.” Presumably this refers to the memorandum and order of April 1974, denying appellant’s petition post- brief, however, conviction relief. In the there is no allegations i.e., petition, reference to the in that made incompetent that trial counsel had been in not advising rights, appellant appellant of his and that January 8, should have been sentenced under the Act of Instead, supra. only argues appellant the brief that should have been convicted sentenced for merged because that offense had with the involuntary offense deviate sexual intercourse. response the Commonwealth has favored us with a very argues able brief. First the Commonwealth that argue merger is not entitled issue by way because “issue raised at trial or [was not] post-trial motions.” Commonwealth’s Brief at 3. Next the proceeds merger to discuss the issue on merits, prefacing following its its discussion with the statement. any authority
“While there does not seem be directly point the Commonwealth with this fact situation, jurisdic- has issue been raised other generally opposing tions where there are two views. view One is that once there is a seizure or detention person, accompanying of a of the movement person, separate this is sufficient to constitute the reasoning being kidnapping; crime of fact of forcible removal constitutes the crime of kidnapping. or The other view is that such seizure *8 separate detention is not constitute a sufficient to crime, merely for the movements are incidential [sic] long to the commission of another offense so as the substantially movements do not increase the risk of beyond danger necessarily present that in the commission of the other offense. Annot. 43 A.L.R. 3rd (1972).” Id. at 3-4. emerge foregoing Several issues procedural from the morass.
-A- The first issue concerns the failure any post-trial file motions. merger recognizes, As issue are, however, one. is a substantial There several obstacles that must overcome before we consider it. by appellant’s It is not that the was clear issue raised colloquy judge trial counsel. Counsel’s with the trial has quoted full, ante, page 350. been in Counsel’s plain arguing remarks do not make it whether he was merger, unconstitutionally vague or that the statute was failing distance,” to define “substantial or that prove evidence would that victim had been moved Although replied a “substantial distance.” the court counsel, argue now,” “... going we are not suggests argument which anticipated, that later was argument. by fact there no helped was later Nor are we testimony the manner in which on the involuntary charges deviate sexual intercourse was presented. colloquy expect might From counsel’s one competent evidence the distance that the victim had However, been moved upon. would have been insisted detective, police was witness called - - Commonwealth, testimony objected whose none it appears largely hearsay. to He himself found the bicycle, child’s and measured the distance from it to a building; maintenance he said the distance was at least Otherwise, however, appears 1.2 got miles. it that he talking information from to the child and one Milton Appleyard, witness; neither of whom called as
357 stipulated by was counsel that the victim identify “would [appellant].”5
Assuming merger the issue of at raised trial, why is not clear post-trial no motions were filed. rule, by way issues not post-verdict
“[A]s raised of motions in the trial court will not be considered on appeal.” Carter, 310, 313, Commonwealth v. 463 Pa. 344 846, Accord, (1975). Reid, A.2d 848 Commonwealth v. 458 (1974). Thus, Pa. 326 A.2d merger 267 the of issue has been held waived where it was not post- raised in trial motions or at sentencing. time of Commonwealth v. Gadson, Superior 648, 651-652, 234 Pa. Ct. 341 A.2d (1975); 192 Tisdale, Commonwealth v. Superior Ct. 334 (1975). A.2d
Since the post-trial failure to file motions will severely therefore scope limit the appeal, of an and in practical may equivalent effect filing any to not appeal all, at the failure must be the result of a voluntary intelligent and decision a defendant right waive his to file such motions. Commonwealth v. Carter, supra. result, paragraphs (b) To ensure this and (c) of require judge Pa.R.Crim.P. trial to follow procedures: certain
“(b) agrees record, If the defendant on the post-verdict may orally motions be made conclusion of the trial. The defendant also within (7)-day period the seven on the record voluntarily understandingly filing waive the of post-verdict acceptance motions. Prior to the of such shall, judge waiver the pursuant trial paragraph (c) Rule, of this advise the defendant on the record waiving post-verdict his of motions shall regard following Appellant’s 5. confession contained this victim: you go you pulled her into the car? “Q. Where did after couple “A. We around the corner a of blocks to a deserted went
road.” any which raising appeal issues on
preclude motions. might raised in such have been judge guilt, finding the trial Upon of “(c) (1) of his on the record: the defendant shall advise right to of his post-verdict motions and to file filing such motions of counsel in the assistance therein; (2) appeal issues raised as set forth must do so within which he time grounds *10 the (3) that paragraph (a); and appeal.” on raised in such motions contained judge in the by trial the procedure followed the record quotation from appears in the present case observed, it ante, there pages As will be 351-352. at give appellant although judge the did appears that the by 1123(c), warnings required Rule three first two of the judge appears that the give It also the third. he did appeal you an stated, incorrectly, don’t file that “[i]f appeal you may file an days, not thereafter within seven finally, response was elicited appears that no ..And judge, appellant or his counsel. from either Wardell, Superior Ct. 232 Pa. v. In Commonwealth ... 746, 468, 469, (1975), it is said: 747 “[W]here 334 A.2d were not why post-trial motions silent on record is evidentiary for an filed, remanded must be the record ‘intentionally appellant whether hearing to determine right the assistance relinquished’ his ‘to intelligently and taking perfecting task of in the critical of counsel necessity counsel’s appeal ... includes] [which Com- motions.’ filing post trial assistance 444,] Grillo, Superior Ct. Pa. monwealth v. [208 [427,] at 429 222 A.2d [1966].” however, appellant. relief, not available This the lower court filed with had been petition Wardell tunc; pro one nunc post-trial motions to file for leave appeal from defendant’s us was the matters before Here, no petition. denying that order lower court’s addition, appellant’s filed. In petition has been such for an the record us to remand not asked has evidentiary voluntarily hearing on whether intelligently post-trial waived his to file motions. Indeed, given counsel has no indication that he recognizes significance of the that no such fact Jones, were motions filed. In v. Pa. 713, 716, (1975), post-trial 334 A.2d where withdrawn, Supreme motions were filed but then Court “The stated: issue whether decision [to voluntary withdraw the and made with the motions] competent advice of counsel not been has raised appeal, and therefore we do not consider it.”
-B- appellant’s petition The second issue concerns relief, post-conviction which was dismissed without appointing hearing. counsel6 and without jurisdiction post-conviction hearing this a first
“[I]n petitioner should not be dismissed where the indigent counsel, requested affording and has without representation him proceeding ....” Com Fiero, monwealth v. A.2d *11 341 449 accord, Johnson, (1975); 522, Commonwealth v. Pa. 431 n.7, 345, (1968). 532-533 246 A.2d 351 n.7 Com 145, Jones, 146-147, Superior monwealth v. Ct. 236 Pa. 504, (1975), 344 A.2d 505 this said: “The law in Court Pennsylvania clearly states that dismissal of PCHA counsel, petition, appointing permitted only without is previous involving petition when a PCHA the same issue finally adversely or issues has been determined to the petitioner petitioner represented by and in counsel petition appellant appropriate 6. In the PCHA checked the boxes #12, however, indigent #11 to indicate his status. At he both checked (A) (A)(1), requests which state he is without counsel and a court- appointed representative, (B), lawyer. (B) which states he has a At However, appellant attorney listed the name at trial. clear petition acting from the and the court order that was in fact attorney. without an 360 petition. relating previous PCHA to such proceeding 1504; Pa.R.Crim.P., Commonwealth Rules 1503 and
See
(1969);
Schmidt,
139,
Com
A.2d 460
Pa.
259
436
v.
Mitchell,
395,
(1967);
A.2d 148
235
v.
427 Pa.
monwealth
Richardson,
419,
A.2d 183
Pa.
233
426
v.
Commonwealth
226,
Hoffman,
Pa.
232
426
v.
(1967), and Commonwealth
original).
(Emphasis in
(1967).”
A.2d 623
petition
Pennsylvania that
if a
law
It is also the
petitioner to
proved would entitle
alleges
that if
facts
evidentiary
granted an
relief,
petitioner should
25,
Act,
January
Hearing
Act of
hearing.
Conviction
Post
1580,
§1180-9;
§9,
P.S.
Com
1966,
(1965)
19
P.L.
373,
Via,
(1974);
A.2d 895
Pa.
316
v.
455
monwealth
79,
Kravitz,
that the appointment was denied without the hearing; counsel or a but that is all.
-C- The third appeal issue concerns the nature of the before us. hand,
On the one writ of certiorari recites that appeal judgments has been taken from the of sentence on indictment, all of the bills of both those which appellant pleaded guilty, bill, and the on guilty. argument which he was found contained in part brief to is at us least consistent writ, in that it attacks the conviction and sentence for kidnapping; regards there is no attack as the other bills. hand, On the other the brief is inconsistent with the writ “Appeal in that it is entitled from Memorandum and Court,” Order of the Lower which can refer to the appellant’s petition lower court’s post- denial of for conviction relief.8 have appeal
We
concluded that however
regarded,
quashed.
mentioned,
it must be
As has been
imposed
sentences were
on March
and the
denying
petition
post-conviction
order
relief was
trial,
advising appellant
At the
8.
close of
the court indicated in
appeal
represent
of his
that his trial counsel would continue to
(NT 44.)
representation
appeal by
him.
The continued
the same
important
applying
counsel as
trial
is an
factor in
rules
Dancer,
(1975),
v.
filed 1974. order, judgments filed sentence or it had be of 673, days. July thirty P.L. No. within Act of 223, V, §502, §211.502; art. 17 Post Conviction P.S. Act, Hearing supra, §11, In fact the P.S. 19 §1180-11. untimely An appeal was filed until 1974. not June of, goes it appeal we take is a defect that must notice Lord, jurisdiction. our v. 230 Pa. Commonwealth (1974). Superior A.2d Ct. 326 455 however, expect, appoint We that the lower court will County Dauphin new counsel other than one from the represent appellant.9 do Public Defender’s office We on opinion not intimate an whether has been rights; may his denied of be that he has not been. however, many questions, The record raises so inquiry further is warranted.10 appeal quashed. J., Jacobs, in the result. concurs Concurring Opinion by Price, J.: untimely. simply appeal I quash would as Via, See, remedy supra, in similar v. which a Commonwealth 9. was ordered. Via, See, supra, r. v. and Commonwealth 10. Commonwealth Fiero, involving multiple proceedings supra, in cases PCHA each appeal post-trial taken and filed nor direct which no motions were raising ultimately questions trial counsel effectiveness Dancer, Also, supra, original v. PCHA counsel. appeal question counsel direct that the of effectiveness of court noted challenged proceeding. at 101 n. 331 in a PCHA could n. 4. A.2d at 438 Fiero, requiring Supreme the rule Court noted request appointment of an a first PCHA attorney naming indigent “[clearly] of an ... to the mere limited accused, appointed represent that counsel so but also envisions discharge responsibilities opportunity shall have the in fact representation.” required A.2d at Pa. at 413. added). (emphasis