*1 I Ingram believe (1976), A.2d 346 Minor, fashion. My wholly prospective in a applied no doubt at bar leaves in the case of the record examination (to involved herе colloquies plea the mind that in my battery assault and and aggravated rape, murder generally, pre-Ingram require- satisfied the kill) fully with intent to knowing, intelligent were ments, the pleas and that allowing find no justification I therefore voluntary. the cases be ordering of the pleas withdrawal retried. Hence dissent. A.2d 357 Pennsylvania
COMMONWEALTH FAUNTROY, Appеllant. Clifton Pennsylvania. Supreme Court 29, 1976. March Submitted Dec. Decided *2 Mottola, Clarfeld, F. Carol J. Suzanna Philadelphia, for appellant.
F. Emmett Dist. Fitzpatrick, Atty., Goldblatt, Stеven H. Chief, Div., Asst. Atty., Dist. Mark Appeals Sendrow, Asst. Chief, Div., Dist. Asst. Atty., Appeals appellee. JONES, J., EAGEN, Before C. and O’BRIEN, ROBERTS, POMEROY, NIX, PACKEL, MANDERINO and JJ.
OPINION OF THE COURT PER CURIAM. Clifton
Appellant, Fauntroy, was found in Novem- ber, 1973, of murder in the first degree and conspiracy. denied, Post-trial motions were judgment sentence of life imprisonment was on imposed the murder charge; sentence on the charge was No time- conspiracy suspended. from the ly appeal judgment sentence was taken. In January, filed a under petition Act1 he had alleging Post-Conviction bеen his rights California, denied relative to appeal. Douglas U.S. (1963). Finding S.Ct. L.Ed.2d 811 the Commonwealth had shown that had Fauntroy waived his him appellate rights, granted PCHA court to file lеave an tunc denied all other pro nunc then took the record Appellant this appeal,2 to court, reveals be from the order of the not frоm PCHA of sentence. judgment
It is evident from an examination of briefs filed behalf appellant’s he intended challenge both the on the judgment sentence murder cоnviction (which had been entered after only post-trial *3 motions had denied) been filed and and the denial the by PCHA court of his for request collateral relief other than of his recognition appellate We have in this case rights.3 overlooked the procedural irregularities4 and, care- having 25, 1966, January (1965) 1580, of seq., 1. Act 1 P.L. et P.S. 19 § 1977-1978). seq. (Supp. et § 1180-1 Court, erroneously Superior 2. The was taken the Appellate transferred it to this Court. Court Jurisdiction Act of 1970, 31, 673, 1970, 223, II, July 202(1), Act of P.L. No. 17 P.S. § art. 211.202(1) 1977); (Supp. 503(b), 211.503(b) (Supp. id. 17 § § P.S. § 1977). only rеquest ground 3. The such was for a one new trial the of after-discovered evidence in the form of a recantation. See Post- Act, 1, supra 3(13), 1180-3(13) Conviction notе P.S. § 19 § (Supp. 1977-78). Fauntroy’s testimony post-conviction at the hear- ing Normally, claim, clearly any ground. was insufficient to warrant on that relief any the court PCHA should not havе taken action on this already Fauntroy since it had that found was entitled to an pro Bricker, 476, nunc tunc. Commonwealth v. 444 Pa. 282 (1971); Webster, 31 314, 319, A.2d Commonwealth v. 353 466 (1975). A.2d But case aftеr-discovered evidence claim presented part post-trial motions, was it was therefore to the trial as court of for the PCHA to act. possible аppellant It is that towas some extent misled wording of the PCHA court’s order. in his by appellant made arguments considered fully merit.5 be without briefs, find them to affirmed; of the court of order of sentence Judgment relief affirmed. post-conviction common pleas denying a ROBERTS, J., concurring opinion. filed ROBERTS, concurring. Judge, are clаims majority appellant’s with the I agree affirmed. sentence should be of judgment without merit and however, majority’s suggestion with the agree, I cannot on after-dis- his claim based not have raised should appellant sentence, from judgment in this appeal covered evidence a separate appeal raised the claim in should have but instead from the denial of court ruled that hearing
The post-conviction from as if filed timely to file an appeal should be аllowed was that appellant sentence. decided Having judgment have court should not entitled hearing to direct in the petition post- other claims raisеd addressed any conviction relief: that a peti- court determines a post-conviction
“[WJhere no decision tioner entitled to a direct appeal, is for post-con- other bases therein alleged be made on then Bricker, 458 Pa. v. viction relief. Commonwealth See also, Common- n.2, (1974). 326 A.2d 280 n.2 See (1971); Com- Harris, 443 Pа. 278 A.2d wealth (1971). 512, 276 A.2d Robinson, monwealth v. 442 Pa. all of the since it allows This is procedure preferable in one disposed to be be raised complaints may *4 action.” in appellant’s assignments he advances The
5.
of trial error
insufficiency
to
support
appeal
of evidence
of his direct
include
conspiracy,
degree
a
sustain
conviction of murder in the first
hearsay
co-conspirators
by alleged
without
admission of
statements
foundation,
acquittal
in this
direct an
failure of the court to
prejudice
light
jury acquittal
co-сonspirator,
to
in
case
of a
of a
guilty
not
appellant
permitting
jury
of
in
the
to know of the verdict
co-conspirators, and
which had been renderеd in favor of one of the
attorney
clos-
allegedly
in his
improper
prosecuting
remarks
the
ing address.
291
Webster,
314,
372,
319,
Commonwealth v.
353 A.2d
Pa.
I
(1976).
fail to see
reason
whеn
any
why,
the post-con-
viction hearing court
after
a
incorrectly proceeds
granting
direct
to hear a claim
the
error
appeal
petition,
raised in
the
should be compounded by
ignore
the defendant
to
requiring
the claim in his direct
instead
it in a
appeal, and
raise
from
denial
separatе appeal
of
In
with the
of
all
keeping
allowing
of a defendant’s
policy
claims to be
in
disposed
action,
of
one
see Commonwealth v.
id.,
Webster,
we
sought
have
to ensure that
claims
any
be
which can
raised in
also
post-conviction proceedings may
Thus,
be raised
a direct
a defendant
require
we
appeal.
in the
facts
though
to raise issues
direct
even
which those
are based
not
trial
upon
claims
were
before the
was
or
when
defendant
found
his
guilty
plea
Lee,
was
Pa.
accepted.
Commonwealth v.
guilty
See
324,
(1975)
In particular, our cases
the claim issue
reсognize that
at
here,
new trial should be
on the basis of
granted
evidence,
after-discovered
can be
appeal.
raised
direct
See, e. g.,
Miller,
458,
Cоmmonwealth v.
Pa.
Requiring
appeal
these
be raised on direct
resources,
conserves
is
judicial
ensures
a defendаnt
to wait
required
until a direct
is
before
decided
he
Therefore,
can raise a claim which entitles him to relief.
requiring
appeal applies
The rule
that all issues be
in a
raised
direct
equal
granted
with
force when
has
file an
been
leave to
timely
Bricker,
as if
filed. See Commonwealth v.
458 Pa.
(1974) (validity
guilty plea
it was evidence on his after-discovered ruling post-conviction re The majority’s suggestion in this direct appeal. claim the courts.1 All counsel and needless quires paperwork be, which can be raised in a direct issues from the denial of separate appeal there is no need to take post-conviction A.2d 360 Pennsylvania
COMMONWEALTH (two WILLIAMS, Appellant cases). L. Calvin Pennsylvania. Court of Supreme Oct. 1976. Argued Decided Dec. appeal may prevent appel on a
2. Failure to raise an issue direct an raising post-conviction proсeeding. the issue in a later lant from Act, 25, 1966, January (1965) Post Conviction Act of P.L. 4(b)(1), 4(b)(1) 1977). (Supp. 19 P.S. I do not believe § § 1180— when, majority although would find the issue waived it is not in raised the direct it is raisеd in a simultaneous taken so, from the denial of relief. Even counsel would majority’s suggestion ill-advised to follow the and fail to raise an appeal. issue the direct