*1 127 incapable appraising her of his or con- nature duct;
“(3) person knows that other unaware being an indecent contact is committed; “(4) substantially impaired per- he has the other power appraise son’s or control his or her conduct, by administering employing knowledge or without drugs, of the other intoxicants other for the or means purpose preventing or resistance;
“(5) person custody other is in de- of law or hospital tained in a or other institution and the actor supervisory disciplinary authority has him.” over merged.
These crimes v. Commonwealth 452 Nelson, Pa. A. 2d ex rel. Commonwealth ; (1941). v. Shaddock A. Ashe, 340 2d 190 given Sentence should not have been on the indecent though suspended. assault conviction even The future prejudice upon is sufficient basis which improperly imposed suspended vacate sentence. Commonwealth v. Wolfe, 220 Pa.
A. 2d 153 Judgment rape suspend- of sentence for is affirmed; ed sentence for indecent assault is vacated. Appellant. Fryberger,
Commonwealth v. *2 P. Watkins, J., Submitted June 1974. Before der Voort, Van Jacobs, Hoffman, PRice, Cercone, and Spaeth, JJ.
William, appellant. for N. Sterling, Assistant F. and Timothy Knauer, Ned Hand H. Attorneys, District At- District and William H. Lam,b, torney, appellee. for Commonwealth, February 1975: J.,
Opinion Jacobs, deny- order This is from the loiver court’s ing requested by appellant in his PCHA1 the relief petition. Appellant’s principal he did is that contention understandingly Avaivehis appel- agree motions. Because Ave permit we remand this court and lant, case to loAver *3 appellant pro tunc. such motions nunc charged appellant record reveals that Avas playfully discharging wantonly pointing a fire- and (four battery (tAvo counts), rape assault and arm, counts), adultery (four Appellant’s counts). and first May trial in a which was held of 1972ended mistrial. appellant’s At the conclusion of trial which was second September jury held in of the found 1972, guilty adultery acquitted on all him four counts of but charges. of the other No motions Averefiled by appellant’s privately-retained Nonetheless, counsel. appeal filed a That direct Aviththis Court.2 appeal per opinion. was affirmed curiam without Com- Superior 226 Pa. Ct. 308 monwealth v. 707, Fryberger, 1 January Hearing 25, 1966, Post P.L. Conviction Act of 1580, seq., seq. (Supp. 1974-75). et et §§1 P.S. §§1180-1 19 any concerning alleged no Because motions trial only argued appeal length filed, errors were the the of issue on the sentence. filed
A. 2d 108 November13,1973, On petition alleged, among other PCHA which standingly things, that he did not and under right After an waive his file motions. evidentiary hearing his trial in which and petition. the lower court dismissed testified, appeal This followed. testimony reveal
The notes of of the PCHA appellant’s that soon after the trial counsel second trial, propriety filing post-trial considered the of motions. post- eventually came the conclusion that Counsel trial appellant. and related this motions would fruitless No were filed. motions In Commonwealth v. Grillo, recog (1966), A.2d Court our nized: of “[A]n accused is entitled to the assistance taking perfecting counsel in the critical task of appeal, right intentionally intelli unless such gently relinquished. [post-trial] . . . The failure may prescribed motions within time court rule subsequent appeal by bar a defendant limit [or arguable issues]. a defendant’s Thus, perfecting appeal properly assistance of counsel in necessity, of in the must, filing include counsel’s assistance Consequently, . . . counsel’s personal filing conclusion that the motions is unwarranted should not foreclose defendant’s representation on such motions. the deci sion not to file such motions, no less than requires decision not the de itself, *4 intelligent understanding appreciation fendant’s consequences In of such action.” this Court Grillo, remanded the case lower court directions evidentiary hearing to hold an to determine the circum surrounding appellant’s post-trial stances failure to file present In evidentiary case, held at which testified that he was not told happen what would if no motions were filed or that the failure to file motions would waive Although appellant’s trial errors. trial counsel testi- appellant agreed fied that with his decision not to file counsel motions, never testified that he ad- consequences vised of the failure to file question such motions. When this was asked: “Isn’t it you by true filing didn’t tell him not his motions he gave up right appeal upon forever the merits?”, appellant’s responded: trial counsel “I can’t recall that being appellant’s discussed.” Thus, claim that he did understandingly not right waive his supported by motions is the record. say lower court stated: “We cannot that de- understandingly
fendant did not waive right this [to file motions].” However, question does not answer the A before us. “waiver” is relinquishment “an intentional or abandonment of right privilege.” known or 304 U.S. Johnson v. Zerbst, if Thus, waiver occurred it should affirmatively, negatively determined as was done by the court below. nothing present
There was on the record case to indicate that had been informed court of the of his failure to file proving motions. The burden of waiver of the on is the Commonwealth in silent record cases represented by private where the defendant was by court-appointed counsel. Commonwealth v. Jones, (1971). Similarly, 447 Pa. A.2d 892 where the any record bare instructions to as motions, burden of establish- ing waiver falls on the Commonwealth. See Common- wealth v. Matcheson, 259 A.2d (1969) (dissenting opinion). *5 meet failed in case has The Commonwealth appellant testimony and both of its burden. of appellant unaware was that establishes trial not to file the decision of that indicate does not the record by the effect appellant court of the lower Avasadvised such motions. file failure instructions case remanded with Order reversed and permitted motions file be that pro nunc tunc. by J.:
Dissenting Opinion Voort, deR Van respectfully I dissent. my
In satisfied its burden the Commomvealth view, permitted proof of should pro record shows nunc tunc. The file motions represented capable at trial well was Fry- attorney represented private The same counsel. berger stage this case. at the motion Fryberger and trial
At the PCHA both concerning post- counsel testified the decision not appellant (who, incidentally, trial motions. The ways presumably Chief of well versed Police, justice) following: of criminal testified to (1) He he had seven file days knew judgment motions for arrest trial. or new (2) He knew of his file need to within possible judge’s test seven mistakes in trial days rulings proprieties or to test the of the District Attor- ney’s get actions order to a new trial. He did not want be- motions figured suspended
cause he he ivould receive a sentence try perjury by and then to show Avitnesseswho testified against (apparently post-conviction him in a collateral appeal). Trial counsel testified discussed the deci- sion not to motions with the twice within the seven day period verdict. following He testified further that Fryberger agreed with his conclusion that there were trial no errors which could arguably support successful post-trial motions.
On the basis of the I testimony recited find it above, inconceivable that the Majority would conclude that *6 Fryberger ivas “unaAvare of the decision not to file post-trial motions.” If Fryberger hneio he had seven only to clays exercise his test the possible errors and in improprieties existent it defies trial, logic presume that he did not under- stand the consequences of his failure to raise such matters Avithin the seven days. the fact of Obviously, knowledge of the seven day limitation by Fryberger compels conclusion that he kneAVif he delayed beyond seven days, raise such matters Avould be lost. record shoAvsthat explicitly former police official discussed possible trial errors with his privately retained counsel and decided that it be tactically, Avould wiser to attack his in conviction a collateral I proceeding.1 believe it is error to award an appellant “two bites of the apple” Avhen his first tactic fails —I think the principle of waiver still has in vitality our criminal laAV.
While I have already expressed dissent my holding of the majority under the facts of the instant I case, feel compelled to note one further matter Avhich has been troublesome to me in this case several similar appeals. I am concerned with the increasing wha,t tendency our appellate courts to require might be termed “spoonfeeding” of criminal defendants. The trend in many appellate decisions seems destined to compel a some holding that day every criminal defend ant be afforded a full course criminal law and proce hopes suspended When his for materialize, a did sentence not Fryberger appealed propriety of sentence to our Court. before a conviction law and one in constitutional dure example a may case is finalized. instant holding require seems to wherein the situation layman under afforded similar who is a defendant be standing criminal law to the intricacies of of all of attorney privately retained of his extent as that same give weight a conscious decision before we will only appeal. I think a situation file an Not do such position wrong, it I believe belittles is integrity but competent defense counsel. joins dissenting opinion. Watkins, P. in this J., v. Green. Commonwealth., Appellant,