Commonwealth v. Miller
335 A.2d 528
Pa. Super. Ct.
1975
Check Treatment

Opinion by

Cercone, J.,

Thе appellant was found guilty by a jury of forcible rape, burglary, aggravated robbery, assault and bаttery, aggravated assault and battery, and assault and battery with intent to murder. Both at pre-trial motiоns and at trial the appellant refused the services of the voluntary defender and demanded that the court appoint private counsel. The court denied appellant’s request and after warning the appellant of the seriousness of Ms refusal of the services of the vоluntary defender proceeded with the trial. During the trial the appellant neither cross-exаmined the Commonwealth’s witnesses nor offered any defense. After the verdict was returned the aрpellant stated that he wanted to appeal. The trial judge accepted this statement as the equivalent of an oral motion for a new trial and in arrest of judgment *174and told tbe appellant that lie would be given tlie opportunity to file formal additional requests after tlie notes of testimony had been transcribed. The appellant never filed such ‍‌‌‌​​‌‌‌​​​​‌‌​‌​​​​‌‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌​‌‌‌​​​‌‌‍motions and instead a direct appeal was taken raising several issues outside the scope of the orаl motions. The appellant is represented in this appeal by the voluntary defender.

Genеrally, an issue not raised in post-verdict motions will not be considered on appeal, even though the issue was raised at pre-trial proceedings or during trial. Commonwealth v. Reid,, 458 Pa. 357, 326 A. 2d 267 (1974) ; Commonwealth v. Bittner, 441 Pa. 216, 221 (1971); Commonwealth v. Myers, 439 Pa. 381, 384-385 (1970), and cases cited therein. Thе Pennsylvania ‍‌‌‌​​‌‌‌​​​​‌‌​‌​​​​‌‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌​‌‌‌​​​‌‌‍Supreme Court recently discussed this problem in Commonwealth v. Coleman, 458 Pa. 112, 327 A. 2d 77, 78-79 (1974) stating: “Post-verdict motions serve the dual function of allowing the trial court to rectify errors which may have been committed at trial, and of framing and clarifying the issues to be considered should there be an appeal. Because such motions are a critical step in the post-conviction review process, we will scrutinize closely any waiver of the right to file them in order to ensure that the defendant has actеd voluntarily and with a full understanding of his rights. See, e.g., Commonwealth v. Littlejohn, 433 Pa. 336, 250 A. 2d 811 (1969); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A. 2d 220 (1967); Commonwealth ex rel. Fink v. Rundle, 423 Pa. 133, 222 A. 2d 717 (1966). On the other hand, as we ‍‌‌‌​​‌‌‌​​​​‌‌​‌​​​​‌‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌​‌‌‌​​​‌‌‍said in Commonwealth v. Wallace, 427 Pa. 110, 113, 233 A. 2d 218, 220 (1967), ‘a defendаnt, who deliberately and knowingly chooses to bypass the orderly state procedures affоrded one convicted of a crime for challenging his conviction, is bound by the consequenсes of that decision.’ See also Commonwealth v. Bolognese, 428 Pa. 405, 239 A. 2d 307 (1968) ; Commonwealth ex rel. Harbold v. Rundle, 427 Pa. 117, 233 A. 2d 261 *175(1967); Commonwealth, ex rel. Harbold v. Myers, 417 Pa. 358, 207 A. 2d 805 (1967).”

In light of the above cases we cannot now on direct appeal consider the issues ‍‌‌‌​​‌‌‌​​​​‌‌​‌​​​​‌‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌​‌‌‌​​​‌‌‍which appellant raises. Neither can we dismiss the issues as waived beсause Coleman, supra, requires that the decision not to file post-verdict motions must be a deliberatе, intelligent and voluntary act. To determine if such a decision was deliberate, intelligent and voluntary we must review the post-verdict proceedings. The trial judge at that stage of the procеedings is required by Rule 1123(c) of the Pennsylvania Rules of Criminal Procedure to advise the defendant on thе record of certain matters pertaining to post-verdict motions set forth in Rule 1123(c) : “(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of his right to file post-verdict motiоns and of his right to the assistance of counsel in the filing of such motions and on appeal of аny issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a) ; and (3) that only the grounds contained in such motions may be raised on appeal.” Unfortunately in this case the pоst-verdict colloquy fails to comply with Rule 1123 (c), and more specifically it fails to comply with Rule 1123(c) (3) which warns the defendant that if he fails to raise a certain issue in post-verdict motions that issuе cannot be raised on appeal. Therefore, we are forced to conclude that the appellant’s decision not to file post-verdict motions was not a deliberаte, intelligent and voluntary act.

We are now faced with an appellant whose issues cannot be considered on appeal because he failed to raise such issues in pоst-verdict motions and who, at the same time, ‍‌‌‌​​‌‌‌​​​​‌‌​‌​​​​‌‌‌‌​‌‌​‌‌​‌‌​‌​‌​‌​‌‌‌​​​‌‌‍cannot be said to have deliberately, intelligently аnd knowingly decided not to file post-verdict motions because of the trial judge’s failure to cоmply with Rule *1761123(c). A similar situation existed in the case of Commonwealth v. Dimitris, 281 Pa. Superior Ct. 469 (1974). There the case was remanded to the lower court in order for it to comply with Rule 1123(c) and to allow the appellant to file post-verdict motions nunc pro tunc. If the appellant, after being advised on the record of the items contained in Rule 1123(c), then fails to file post-verdict motions, such failure could then he considered a deliberate, intelligent and vоluntary act.

Therefore this case is remanded to the trial court for the purpose of сompliance with Rule 1123(c) and to thereafter allow the appellant to file post-verdict motions nunc pro tunc if he elects to do so.

Case remanded with procedendo.