*1 Cоmmonwealth, we find factor, the prejudice second should have been granted. withdrawal requested claims it was because it nol prejudiced The Commonwealth and one count two counts of assault aggravated prossed all, This is not since prejudice mischief. of criminal not attach when three counts were did jeopardy double bar the Common- nothing We see would prossed.1 nol if three counts from these proceeding wealth Therefore, plea. to withdraw permitted guilty had been claims no other we hold prejudice the Commonwealth since denying abused its discretion to appel- thаt the lower court plea. guilty to withdraw his request lant’s vacated and this case is remanded for are The sentences trial.
WATKINS, not Judge, participate former President did decision of this case. the consideration or
D. Richard Commonwealth, appellee. JACOBS, WATKINS, Judge, President
Before PRICE, VAN der VOORT and CERCONE, HOFFMAN, SPAETH, JJ.
HOFFMAN, Judge: does not demonstrate that the record contends Appellant withdrеw his knowingly voluntarily he that that we permit appellant requests a remedy, motions. As Instead, we file post-verdict him to whether determine remand his post-ver- withdrew appellant dict Lancaster Court of Common 21, 1976, County July
On and theft by guilty rape1 adjudged appellant jury Pleas ver- returned its jury guilty After taking.2 unlawful have the “you that appellant court advised dicts, the lower trial, a new which must be motion for file a verbal advised, so Having been days. within seven writing put trial accordingly.” Appellant’s govern yourself will you Mummau, Howard re- Public Defender counsel, Assistant to file written motions leave of the court asking sponded request. granted the сourt days; within seven filed timely counsel 28, 1976, July appellant’s On or a new trial.3 judgment an arrest of either requesting failed to the Commonwealth alleged These verdicts and to sustain the guilty evidence sufficient produce evidence, the weight to the contrary were that the verdicts also evidence, provided the law. The motions rea- to file supplemental reserved the right the notes of upon transcription new trial for a sons an affidavit counsel attached testimony. Appellant’s within Motions are not made that “the he affirmed which it is believed that an but because delay, for the purpose Rinier, Further, Riсhard W. suffered. has been injustice Motions be made.” defendant, that said requested Defender, Assistant Public another November On behalf, filed Browne, Jr.,4 acting appellant’s F. Edward These motions al- a new trial. motions for supplemental the Com- (1) granting erred in that the lower court leged (2) 1100(c)petition, permitting monwealth’s trial motion for (3) denying appellant’s testify, wife to *4 motion asserted that A final new counsel. appointment 334, 1, 1972, 1482, Code, eff. P.L. No. § Act of Dec. 1. The Crimes 6, 1973; 3121. § 18 Pa.C.S. June Code, supra; 18 Pa.C.S. 3921. § 2. The Crimes requires 1123(a); Appendix; that written 19 P.S. Pa.R.Crim.P. 3. days finding of after the filed within seven post-verdict motions be guilt. officially entered an if when Browne reveal or record does not 4. The attorney. appellant’s replaced Mammau as appearance and evidence after-discovered necessitated a new trial. No- On 5, 1976, Browne filed an Attorney application vember for an hearing contention that after-dis- appellant’s evidence made a new trial exculpatory imperative; covered consented to this request. On December granted the lower court application sched- 4,1977. hearing January uled a At the conclusion of this the court reserved its decision on hearing, appellant’s сon- tention. 24, 1977, appellant
On filed a handwritten January peti- tion which of new requested appointment counsel. Ap- asserted that continued pellant representation by Attorney would Browne constitute a conflict interest because ap- wished raise the ineffective assistance of pellant his trial counsel, a member of the same Public Defender office as Appellant’s petition Browne. enumerated several alleged instances of ineffective representation; one allegation ac- cused trial counsel of failure to communicate with appellant after trial and refusal to file certain post-verdict motions on 28, 1977, behalf. appellant’s On January Browne filed a which cited a conflict of petition possible interest and there- fore that the court requested permit him to withdraw from further representation appellant. On the same day, Glazier, B. appointed lower Penn a private attorney, represent appellant. 25, 1977,
On new February attorney filed an application evidentiary hearing on appellant’s conten- tion that his trial counsel rendered ineffective assistance. The Commonwealth’s answer acquiesced in аppellant’s re- “. quest because . . the issue of whether Defendant effective was afforded assistance of counsel at trial is inex- tied to the tricably of the other issues validity which De- fendant has raised motions.” post-trial Therefore, the Commonwealth desired that the hearing should be held prior the disposition of appellant’s post-verdict motions. On 4, 1977, March the lower court granted appellant’s applica- tion and scheduled a April *5 petition filed a for leave to 13, 1977, appellant April On peti- motions. The outstanding post-verdict his withdraw Defendant, Rinier, Jr., W. Richard hav- “The provided: tion counsel, by his Penn B. rights advised of been ing Honorable Court Glazier, hereby petition your does Esquire, Post Verdict Motions heretofore withdraw the leave to Penn attorney, Both and Gla- appellant him.” by filed the the lower day, On same zier, petition. the signed a or conducting without exam- petition the granted on his decision. ining appellant the lower court sentenced to a
On June
not
than time served nor
less
more
imprisonment
term
on
and to a concurrent
the theft conviction
years
than
3V2
probation
rape
conviction. This
years
term of 3
Browne,
followed;
Edward F.
Public Defender
Jr.
a
behalf.
has submitted
brief on
that because he did not know
contends
Appellant
motions,
withdraw his
he
post-verdict
ingly
voluntarily
tunc5
to file
motions
should be allowed
held
a
defendant’s failure to
repeatedly
courts have
Our
constitutes
issues in
motions6
raise specific
expressly
Appellant
for our
has
raised this issue
consideration. At
discussion,
following
stages
we will assume that
defend-
all
argued
he did
before our Court that
not
ant has
However,
right
to file
waive
assumption,
any opinion
making
we do not intimate
as to
may
engage
sponte
in a
or should
sua
review of
whether our
rights.
validity of a waiver of
operation
significance
1123 delineates thе
6. Pa.R.Crim.P.
provides,
pertinent part:
rule
in
motions. This
“(a)
(7) days
guilt,
after a
Within seven
defendant
right
written motions for a new trial
shall have
grounds may
Only
judgment.
those
considered which
arrest
be
trial,
pre-trial proceedings
judge,
unless the trial
in
shown,
or
were raised
Argument
upon
be
allows otherwise.
shall
scheduled
cause
filed,
promptly
such
are
those
after
and heard
issues raised
grounds
upon
may
be
and the
relied
require
transcript,
grounds
argued.
If the
asserted do not
neither
delayed
argument
be
nor
motions shall
testimony.
transcript
the notes of
lack of a
record,
“(b)
agrees
on the
If the defendant
orally
The
made
at thе conclusion of
trial.
be
to have these issues considered on
of his
forfeiture
See,
g.,
Pugh,
e.
appeal.
direct
*6
Perillo,
v.
474
445,
(1978);
183
Commonwealth
Pa.
383 A.2d
Blair,
31,
v.
460 Pa.
63,
(1977);
A.2d 635
Commonwealth
376
214,
However,
1,
213,
(1975).
n. 1
33,
equally
n.
331 A.2d
in
for a waiver
is the
that
order
proposition
well-established
effective,
affirmatively
“.
.
.
the record must
to be
was aware of his
to file
appellant
right
that the
demonstrate
that he
and
knowingly
intelligently
motions and
posttrial
Schroth,
v.
not to do so.” Commonwealth
decided
168,
(1974).
A.2d
also Commonwealth
233, 235, 328
See
Tate,
478,
(1977);
Pa.
may
within the seven
on
record
also
filing
understanding^ waive the
motions. Prior
shall,
judge
pursuant
acceptаnce
waive the trial
of such
to the
Rule,
paragraph (c)
on the
that his
of this
advise
record
raising
preclude
appeal
waiving
shall
on
any
might
in such motions.
which
have been raised
issues
guilt,
judge
“(c) Upon
finding of
the trial
shall advise the
(1)
right
of his
to file
the record:
defendant on
right
the assistance of counsel
of such
and of his
therein;
(2)
issues raised
time
motions and on
(a);
paragraph
(3)
so as set forth in
which he must do
within
only
grounds
in such motions
be raised on
contained
operation of Rule
appeal.”
clarification of the
see
For recent
(1977)
Kinsey,
v.
Commonwealth
PRICE, J.,
Concurring Opinion by
by
(Majority Opinion
HOFF-
Erhart,
MAN, J.)
375 A.2d
and Commonwealth
HOFFMAN,
Opinions
(1977)
(Concurring
PRICE
SPAETH, JJ.)
Schroth,
provides
supra,
prototypi-
when an
court should order an
appellate
example
cal
to determine whether an
right
waived his
to file
post-ver-
defendant,
Schroth,
convicted of first
dict motions.
motions;
instead he
murder,
did not
degree
to the
Court and raised several
Supreme
directly appealed
for review. The
Court re-
of error
allegations
determined that the lower court had
viewed the record and
issues raised
post-ver-
to advise Schroth
failed
on
Without this warn-
appeal.
dict motions could be raised
that “.
could have
concluded
ing,
reasonably
Schroth
prejudice
trial motions would not
post
his failure
would
him the
only operate
deny
but
rights
appeal,
he
to have the trial court consider
errors
alleged.”
*7
A.2d to Rule appellant pursuant to warn obligation its abdicated *8 hear- Moreover, evidentiary the transcript 1123(c)(3). that Tate’s counsel had “dis- remand showed ing client; with his the transcript post-verdict cussed” this and hence gave the content of discussion did not reflect had remedied effectively that counsel’s advice no guarantee 1123(c). of its under Rule disregard duty court’s the trial determine, could not even after Because in- whether counsel specifically evidentiary hearing, an to file failing all ramifications pertinent Tate of formed motions, remanded the case with the Court
175 Tate to file motions nunc to permit directions tunc. pro II, Schroth, Ash I and Tate I and II lessons of
The if a fails trial court to advise be stated: succinctly to file failing on the record of defendant and if the defendant takes a direct motions, the without filing any appellate on whether evidentiary court should remand waived his voluntarily right defendant knowingly ; I;Ash I. At motions. See Schroth Tate trial counsel that he hearing, may testify defendant’s specific warned client that failure to file post-ver his work a forfeiture of issues raised on dict motions would his and thаt client nevertheless decided appeal, freely direct believed, if forego post-verdict testimony, Such the trial failure to would cure court’s observe effectively 1123(c) adequately mandates of Rule would support that knowingly the defendant review.7 preserve appellate waived his issues II; However, if, despite Ash Tate II. See still shows neither counsel nor trial hearing, record warnings informed defendant specifically must then the be afford by 1123(c), defendant required motions nunc opportunity ed an II; Williams, also Ash Tate II. Commonwealth v. See See A.2d Commonwealth v. Pa.Super. (1976); (1975); Swain, 237 Common A.2d Wardell, wealth Williams, 589, 330 A.2d line of cases which affords a different (1975),illustrates the when record on direct appeal to a remedy that he and volun- affirmatively fails to indicate conceivably despite argue being advised of 7. A defendant could counsel, rights the trial court or either involuntary pursue post-verdict was his decision not pressures record. We no not reflected in the intimate because raising proper procedures opinion such a or as to the contention governing of such claim. as to the standards consideration *9 motions pursuant his to file waived tarily sanction, cases in certain Williamsand related Rule 1123. automatic of circumstances, filing post-ver- a remand for the than for an tunc rather dict Williams, pleaded guilty ag- the defendant hearing. murder; charge of general robbery gravated guilty he was found murder hearing, degree guilt were orally Post-verdict motions made but first degree. On request. appeal, at the defendant’s later withdrawn not considered lower raised several issues Williams reviewed the record and discov- The Court Supreme court. Williams that he had instructed the trial court ered he withdrew his post-verdict even if could file misrepresentation precluded affirmative motions. This of the сonse- appreciation that Williams had a full motions. Accord- his withdrawing quences the case to the remanded ingly, trial court for Doman, in reason and result to Williams. In analagous is
(1975), counsel, Doman, defendant, his filed through post-ver- However, Doman’s sentencing hearing, at the dict motions. withdraw that his client would his suggested post- counsel would Doman a sentence give verdict motions if the court on an serving to the one he was then unrelated concurrent this without con- accepted bargain The court conviction. understanding examination of Doman’s ducting any motions or his withdrawing consent to the securing personal arrangement. even Doman’s to the challenge sufficiency Doman raised a appeal, On conviction. Because larceny the evidence to sustain raising had withdrawn his Doman However, it on the merits. issue, we refused to treat not demonstrate that lower court the record did because of the conse- sentencing hearing Doman at the informed motions, we re- withdrawing quences Doman another opportunity post- to allow manded *10 verdict motions.8 A.2d Brown, v. 375 102
Commonwealth
of when a court
very
example
recent
on
(1977), presents
remand for the automatic
filing
should
of
direct
tunc instead of an
pro
evidеntiary
post-verdict
Brown,
to
In
the defendant’s counsel failed
file
hearing.
motions; he
the boiler-
post-verdict
merely filed
any specific
our
Supreme
condemned
Court
Com-
contentions
plate
Blair,
However,
our review of the
supra.
monwealth
the lower court’s failure to inform Brown of
record revealed
in order to
filing specific
preserve
the
of
necessity
for
review. Rule 1123(c)(3).
his claims
Because
appellate
that
had not been
of
apprised
the record evidenced
1123(c),
Rule
we
the case
the
of
remanded
requirements
pro
motions nunc
tunc9
filing
post-verdict
the
bоth involved an
withdrawal
8. Williams and Doman
that,
already filed
motions. These cases make clear
as
“
motions,
any post-verdict
.
the
failure
file
.
.
with-
with a
to
post-verdict motions must have been made with a full
drawal of
consequential
knowledge
understanding of its
and
effect
the
Williams,
appellant’s right
appeal.”
supra,
Rule
the record
not
counsel outside
could
given by
advice
any
give
trial court’s
to
the man-
neglect
effectively replace
Williams,
admonitions.
the trial
1123(c)
Rule
datory
could
if
appeal
defendant
that he
even
instructed the
court
Regardless
any
motions.
of
withdrew his
he
this affirmatively
have
proffered,
his counsel
advice
court,
on
the trial
as
misleading
part
representation
pursuant
to warn a defendant
neglect
to mere
opposed
a
volun-
1123(c),
knowing
a
finding
Rule
precluded
Doman, a lower
allowed
waiver.10 In
tary
in its presence
withdraw
without
his
whether
the defendant
under-
ascertaining
any way
Even if
of his actions.
counsel had
the consequences
stood
significance
the operation
elucidated
sentencing hearing,
client before the
his
failure to examine Doman on
court’s
decision
moment of his
very
any
vitiated
action
waiver.11
Finally,
of a
finding
knowing
Miller,
Compare
Pa.
366 A.2d
10.
Williams,
affirmatively
in Miller
led
As in
the lower court
appeal
could
direct
be taken to a
to believe
filing post-verdict
higher court
the need for
without
(not
1123(b)
Compare
at the time
in effect
of Doman’s
Rule
conviction).
accepting
post-ver-
Prior to
waiver
day
period
guilt,
after a
motions within the seven
dict
court,
1123(b),
pursuant
must advise
defendant on
trial
waiving
preclude
shall
the record that his
raising
might
which
have been raised in such
issues
warning
insures that at the moment
a decision to
motions. This
*12
motions,
post-verdict
defendant
understands
wаive
consequences
Compare also
of his waiver.
(1977).
Brooks,
Brooks,
appel-
Pa.Super.
In
post-verdict motions on the record at the
counsel made oral
lant’s
1123(b).
pursuant to Rule
Neither the lower court
conclusion of trial
consequences
appellant on
of the
the record
nor counsel advised
appeal.
to raise other issues on
action would have on
attempt
appeal.
Appellant
on
to raise different issues
Our
did in fact
filing
pro
motions nunc
tunc.
remanded for the
Doman,
in which a
to
Like
Brooks illustrates
situation
court fails
voluntary
knowing
quality
a waiver
in its
insure thе
very presence.
and
made
situation,
and
in contrast to a
Doman
Brooks stand
Tate,
a waiver
outside
courtroom and
such as
in which
occurs
immediately
opportunity
an
for a court’s instruction
before
without
made.
the decision to waive is
Brown,
trial
to
court failed
advise the defendant that
those contentions
raised in
specifically
post-verdict mo-
be
appeal;
tions would
entertained on
defendant’s counsel
then
written
boilerplate
filed
motions and at-
press
to
more
issues
before the
tempted
specific
orally
lower
Thus, counsel,
on
appeal.
court and
bеhalf of
acting
defendant, ran afoul of the
rule of
very
specificity which the
trial
had
to read. Under
neglected
court
these circumstanc-
es,
it was
clear that
advice of
patently
counsel did not
substitute for the trial court’s
to
effectively
neglect
read
Rule 1123(c)
counsel’s own
warnings:
actions demonstrated
that he
not
operation
did
understand the
of Rule 1123. A
been
evidentiary hearing
remand for
would have
a futile
Walsh,
also Commonwealth v.
gesture. See
(1977).12
A.2d
Schroth,
our
I
upon
reading
II,
Based
Ash and
and
hand,
II on
Williams, Doman,
Tate I and
the one
other,
Brown on the
we
articulate
now
the following guide
cоurt,
lines for
when an
determining
appellate
confronted
with a record that does
affirmatively
not
demonstrate a
waiver
knowing
remand
rights,
evidentiary hearing
should
and when
it
filing
should remand for the
motions nunc
tunc.
pro
If
record demonstrates that the trial court
failed to warn
defendant
failing
motions,
does not
but
rule out the possi
that trial counsel’s
served
bility
advice
as an effective re
then the
court
placement,
appellate
should remand for an
hearing to determine whether the
decided not to
pursue
post-
verdict motions.
If the record demonstrates that the trial
Miller,
Compare
Commonwеalth v.
335 A.2d
Miller,
In
the defendant
refused the assistance of the
verdict,
guilty
return
Public Defender
trial. After the
of a
the trial
warnings
required
to inform Miller
failed
Rule
1123(c).
attempted
Miller
without
motions,
opportunity
our
Court remanded
allow Miller the
Miller,
Brown,
motions nunc
inas
we
given
effectively
counsel
knew that
could not have
advice which
comply
1123(c):
cured the trial court’s failure
with
indeed
counsel
Miller had no
to advise him.
*13
Rule
complete
1123(c)
court failed to
admonitions and
give
counsel’s advice did not or could not
sub-
efficaciously
omission,
this
then the appellate
stitute for
court should
remand to allow the defendant to
motions.13
case,
principles
these
to the instant
we
Applying
believe that
remand
pursuant
Schroth, Ash I and Tate I is in order. The trial court
1123(c);
with Rule
in
comply
particular,
failed
that he had the
failed to advise
“the
in the filing
[post-verdict]
assistance of counsel
of
and on
therein,”
of
issues raised
Rule
appeal
1123(c)(1),
in
“only
grounds
[post-verdict]
contained
mo
However,
be
appeal.”
1123(c)(3).
tions
raised
may
not preclude
the record does
that one of
possibility
three
have advised
appellant’s
attorneys may
appellant of
motions and of the
significance
conse
which attach to a failure to file these
quences
Indeed, it is
that appellant
evident
discussed
with his various
For
attorneys.
example, Appel
counsel,
Mummau,
Howard
lant’s trial
filed an affidavit
his client’s original post-verdict
accompanying
motions;
that he filed the post-verdict
affidavit stated
motions at
In his
January
petition
behest.
request-
compels
Pennsylva-
13. Candor
us to admit that our reconciliation of
encompass
explain
example,
nia cases does not
all cases. For
Dimitris,
Pa.Super.
(1974),
Commonwealth v.
JACOBS, PRICE, J., Judge, President concur in the result.
SPAETH, J., dissents and would remand for filing motions nunc Pa. Cathey,
WATKINS, former President did not Judge, participate decision of this case. the consideration or