The essential procedural history of this case is as follows: The Commonwealth filed a 60-count criminal information against the appellant, Thomas D. Goodenow. That information alleged that the appellant had sexually assaulted his 9-year-old daughter on several occasions. On November 5, 1998, just four days before his trial was to begin, the appellant entered a guilty plea to rape
We recognize that the holding of Commonwealth v. Wertelet, 446 Pa. Super. 352, 666 A.2d 1087 (1995), appears to contradict our view and seems to suggest that the issue of ineffectiveness of counsel can be raised for the first time on appeal and that the trial court can then hold a hearing “ancillary” to that appeal to create a record on which the Superior Court can then dispose of the issue. However, while we have great respect for the decisions of our appellate courts and fully recognize our position in the judicial hierarchy of this Commonwealth, and the binding effect that our appellate courts’ decisions normally have on us, we, nevertheless, believe that the holding of Wertelet is not binding on the case sub judice. We reach that conclusion because the facts of that case are distinguishable from this one, because the reasoning of that holding is contrary to other appellate cases, and because that reasoning is contrary to the long-standing, and sound, common law of this Commonwealth.
There is a long-standing and very basic proposition in our common law that a matter not raised in the lower court is deemed waived and cannot be raised on appeal. Commonwealth v. Capitolo, 508 Pa. 372, 381, 498 A.2d 806, 810 (1985); Commonwealth v. Lederer, 193 Pa. Super. 482, 486, 165 A.2d 711, 714 (1960);
The long-standing common-law principle that issues not properly preserved in the trial court are waived has also been enacted as part of our rules of appellate procedure. See Pa.R.A.P. 302(a).
In Wertelet, the Superior Court held that new counsel could raise an ineffective assistance of prior counsel claim for the first time in a statement filed pursuant to Pa.R.A.P. 1925(b), despite the fact that said new counsel had been retained before the time within which a post-sentence motion could be filed pursuant to Pa. R.Crim.P. 1410,
The most obvious distinction between Wertelet and the instant case is that, here, it is not new counsel who has raised the ineffectiveness of counsel claim, but the very counsel whose ineffectiveness is being alleged. Therefore, the Wertelet court’s concerns with counsel not having enough time to familiarize himself with the record so as to be able to sufficiently articulate the issue for the post-sentence motion are inapplicable. In addition, we point out that the time frame for filing post-sentence motions is 10 days. That is the exact same time frame that existed for the filing of post-trial motions under prior practice and our Supreme Court apparently felt it was sufficient even for new counsel to raise the issue. See Commonwealth v. Miller, supra. Furthermore, it is not completely accurate to suggest that new counsel would only have 10 days from the sentencing to raise trial counsel’s ineffectiveness. Rule 1410(B)(2)(b) states that a defendant can file a supplemental post-sentence motion in the trial court’s discretion so long as the decision on it can be made within the time limits proscribed by the rule. The time limit for the trial court to decide a post-sentence motion is 120 days from its filing, plus a possible 30 additional days, if the defendant requests an extension. Pa.R.Crim.P. 1410(B)(3). Thus, in reality, there is ample time for even new counsel to review the record and
Another significant factual distinction between Wertelet and the case at bar is that in Wertelet the appellant had been found guilty by way of a jury trial, whereas here the appellant pleaded guilty and during that plea proceeding he specifically acknowledged that he was satisfied with his counsel’s representation. Furthermore, as indicated by our comments below, we do not believe it is even appropriate for counsel to raise his own ineffectiveness. However, whether trial counsel himself, or new counsel, wishes to raise the issue, we believe it must be raised in the trial court prior to the direct appeal in order for the issue to be preserved for that appeal. We recognize that there are other appellate cases which seem to suggest that the issue can be raised for the first time on appeal, but in those cases the matter was remanded to the trial court. We discuss these cases infra.
We also respectfully suggest that the Superior Court’s assumption, as expressed by a panel of that court in Wertelet, that the filing of a post-sentence motion was made totally optional by Pa.R.Crim.P. 1410, and its general treatment of the doctrine of waiver, is inconsistent with other Superior Court decisions, Supreme Court authority, and the intent behind Pa.R.Crim.P. 1410. As indicated above, Rule 1410 states that issues properly raised before or during trial are preserved for appeal, whether or not a post-sentence motion is filed on those issues. Pa.R.Crim.P. 1410(B)(1)(c). The rule does not say, nor does it even suggest, that issues not raised in the trial court can be raised for the first time on appeal. Neither does the rule say, nor even suggest, that issues that could have, and should have, been raised before or during trial, but were not, can be raised in
The Superior Court itself has specifically adopted this view with respect to the issue of weight of the evidence. It has stated:
“[A] defendant, who wishes to seek a new trial on grounds that the verdict was contrary to the weight of the evidence, must necessarily raise this issue via post-sentence motion in the trial court. If the trial court denies the motion, the defendant may then file an appeal in which the trial court’s exercise of discretion will be subject to review. Because [the] appellant did not challenge the weight of the evidence in the trial court in this case, we will not address the issue on appeal.” Commonwealth v. Hodge, 441 Pa. Super. 653, 660, 658 A.2d 386, 389 (1995). (footnote omitted)
The Hodge holding was later somewhat modified by the Supreme Court in Commonwealth v. Widmer,
Furthermore, the Superior Court has also said, in Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790 (1995), that:
[Rule 1410] plainly states that only issues which were presented to the trial court before or during trial shall be deemed preserved for appeal in the absence of a post-trial motion. The modifications of Rule 1410 have not altered the requirement ... that ‘[issues not raised in the lower court are waived and cannot be raised for the first time on appeal.’ Jarvis, at 298, 663 A.2d at 791-92. (emphasis added) (citations omitted)
Furthermore, we respectfully contend that the interpretation and application of Rule 1410 in Wertelet is not only inconsistent with the holdings of Hodge; Jarvis and Widmer, but that it is also contrary to the intended purpose of Rule 1410. The purpose of Rule 1410 was to do away with the “double waiver” doctrine. Commonwealth v. Lord, 553 Pa. 415, 419, 719 A.2d 306, 308 (1998).
In addition, the official comment to Rule 1410 also supports the view that in order for an issue to be subject to appellate review, that issue must be raised in the trial court and subject to disposition by that court, regardless of whether the issue is only practically capable of arising post-trial. The comment specifically refers to the issue of ineffectiveness of counsel. While not binding, it states under the heading “Miscellaneous, ” that:
“When the defendant is represented by new counsel on the post-sentence motion, the defendant must raise any claim that prior counsel was ineffective, and the court must consider and decide the claim. ” Rule 1410, comment, (emphasis added)
The Wertelet court also reasoned that the raising of ineffectiveness of counsel for the first time on appeal
When the appellate courts refuse to apply the waiver of issues doctrine and proceed to decide issues raised for the first time on appeal, they not only deny the trial courts their proper place in our judicial system, but they deny the trial courts their opportunity to themselves correct any errors that may have occurred, or to explain why alleged errors are not, in fact, errors. By considering issues that should be deemed waived, the appellate courts also encourage further appeals. In fact, our Supreme Court has stated: “We require strict compliance with the procedures designed for issue preservation to save judicial manpower, and to prevent our appellate courts from becoming advocates for parties instead of adjudicators . . . .” Commonwealth v. Capitolo, 508 Pa. 372, 382, 498 A.2d 806, 811.
We recognize that there are some very limited issues that have been held to be non-waivable. Such issues can be raised at any time. Commonwealth v. Lehr, 400 Pa. Super. 514, 583 A.2d 1234 (1990) (legality of sentence cannot be waived); Commonwealth v. Thomas, 305 Pa. Super. 158, 451 A.2d 470 (1982) (subject-matter jurisdiction is not a waivable issue and may be raised at any stage in the proceeding). However, because of the sound reasons for the common-law principle of waiver, it is our belief that these are the only issues that an appellate court should consider when they have not been first raised in the trial court, and then they should only be considered after the record has been sufficiently developed to allow for a fully informed
“[When] ... a defendant voluntarily, knowingly and intelligently wishes to acknowledge [the] facts that in themselves constitute an offense, that acknowledgment is independent of the procedures of proving or refuting them. How they would be proved, what burdens accompany their proof, what privileges exist to avoid their proof, what safeguards exist to determine their accuracy and under what rules they would be determined, by whom and how, are irrelevant. ” Commonwealth v. Anthony, 504 Pa. 551, 559, 475 A.2d 1303, 1308 (1984). (emphasis added)
As we mentioned above, we are also aware of other appellate cases that seem to suggest that the issue of ineffectiveness of counsel can be raised for the first time on appeal. These cases seem to suggest this, even though they do not directly address whether the issue can be raised for the first time on appeal, because where the issue has been so raised the cases remand the matter to the trial court for its decision on the issue of ineffectiveness of counsel. See e.g., Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382(1998); Commonwealth v. Ciptak, 542 Pa. 112, 665 A.2d 1161 (1995). While this remand procedure is far preferable to the Wertelet, “ancillary” hearing process, because a remand recognizes the proper role of the trial court and gives it
As we also mentioned above, we believe that the issue raised on this appeal should not be considered because it is simply improper for an attorney to assert his own ineffectiveness. Clear authority exists for the
Accordingly, we believe the issue of ineffectiveness of counsel, sought to be raised on this appeal, should be deemed to have been waived for direct appeal purposes, and we respectfully urge our appellate courts to reconsider their holdings that might suggest the contrary in light of the discussion herein, and in light of the sound reasons for the long-standing common-law rule of waiver. We respectfully suggest that they also consider the following:
Claims of ineffective assistance of counsel are the most significant obstacle to the finality of criminal cases
We have already described the problems that serial ineffectiveness claims generate. We believe they are actually encouraged by either the “ancillary” or “remand” procedure used in the cases cited above. Those procedures also can delay the consideration of other legitimate issues that have been properly preserved for appeal as they await the “ancillary” or “remand” procedure. Instead of those procedures, we suggest that the doctrine of waiver should apply, that ineffectiveness of counsel should not even be considered on direct appeal if it was not properly raised and preserved in the trial court, that counsel should be barred from asserting their own ineffectiveness, and that claims of ineffective assistance that have not been previously asserted in the trial court should simply await consideration by way of a petition pursuant to the PCRA, which, by rule, must be now filed within one year of final judgment. Pa.R.Crim.P. 1501(1).
We also suggest that it is entirely proper to expect counsel, as officers of the court, to act as gatekeepers on frivolous ineffectiveness of counsel claims. Counsel should not, as the “ancillary” or “remand” process promotes, feel compelled to raise the issue anytime a client wants to assert it, regardless of merit, and thereby also compel themselves to withdraw from the case. Oth
For all the reasons stated in this opinion, the order complained of on this appeal should not be disturbed.
. 18 Pa.C.S. §3321.
. Pa.R.A.P. 302(a) reads, in pertinent part, as follows:
“General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”
. Pa. R.Crim.P. 1410 reads, in pertinent part, as follows:
“(A) Timing
“(1)[A] written post-sentence motion shall be filed no later than 10 days after imposition of sentence. . . .
“(B) Optional post-sentence motion “(1) Generally.
“(a) The defendant in a court case shall have the right to make a post-sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include:
“(i) a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere; . . .
“(c) Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues. . . .”
. We fully recognize that the procedure applicable in Miller was the procedure that existed before current Rule 1410. Under that procedure the lower court’s post-trial review occurred before sentencing rather than after sentencing as under the current rule. Under that prior practice, a defendant had 10 days after a finding of guilt to file a post-trial motion to present errors for the trial court’s review. Pa.R.Crim.P. 1123(a) (rescinded March 22,1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1410). Under current practice, however, a defendant still has only 10 days to submit a motion for the trial court’s review, but now the opportunity for filing that motion does not arise until after the imposition of sentence. Pa.R.Crim.P. 1410(A)(1).
. “Double waiver” required a defendant to raise an issue when it occurred either before or during trial and then raise that issue again in a post-trial motion in order for that issue to be preserved for appeal and to avoid having the issue deemed waived. Lord at
