Commonwealth v. Fauntroy

380 A.2d 357, 475 Pa. 287, 1977 Pa. LEXIS 890

• Court: Supreme Court of Pennsylvania
• Decided: December 1, 1977
• Docket: 505
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

Appellant, Clifton Fauntroy, was found guilty in November, 1973, of murder in the first degree and conspiracy. Post-trial motions were denied, and a judgment of sentence of life imprisonment was imposed on the murder charge; sentence on the conspiracy charge was suspended. No timely appeal from the judgment of sentence was taken.

In January, 1976, appellant filed a petition under the Post-Conviction Hearing Act¹ alleging that he had been denied his rights relative to appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Finding that the Commonwealth had not shown that Fauntroy had waived his appellate rights, the PCHA court granted him leave to file an appeal nunc pro tunc and denied all other relief. Appellant then took this appeal,² which the record reveals to be from the order of the PCHA court, not from the judgment of sentence.

It is evident from an examination of the briefs filed on appellant’s behalf that he intended by this appeal to challenge both the judgment of sentence on the murder conviction (which had been entered only after post-trial motions had been filed and denied) and the denial by the PCHA court of his request for collateral relief other than recognition of his appellate rights.³ We have in this case overlooked the procedural irregularities⁴ and, having carefully considered the arguments made by appellant in his briefs, find them to be without merit.⁵

Judgment of sentence affirmed; order of the court of common pleas denying post-conviction relief affirmed.

ROBERTS, J., filed a concurring opinion.

1 . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1977-1978).

2 . The appeal was erroneously taken to the Superior Court, which transferred it to this Court. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp. 1977); id. § 503(b), 17 P.S. § 211.503(b) (Supp. 1977).

3 . The only such request was one for a new trial on the ground of after-discovered evidence in the form of a recantation. See Post-Conviction Hearing Act, supra note 1, § 3(13), 19 P.S. § 1180-3(13) (Supp. 1977-78). Fauntroy’s testimony at the post-conviction hearing was clearly insufficient to warrant any relief on that ground. Normally, the PCHA court should not have taken any action on this claim, since it had already found that Fauntroy was entitled to an appeal nunc pro tunc. Commonwealth v. Bricker, 444 Pa. 476, 282 A.2d 31 (1971); Commonwealth v. Webster, 466 Pa. 314, 319, 353 A.2d 372 (1975). But in this case the after-discovered evidence claim was not presented to the trial court as part of post-trial motions, and it was therefore proper for the PCHA court to act.

4 . It is possible that appellant was to some extent misled by the wording of the PCHA court’s order.

5 . The appellant’s assignments of trial error which he advances in support of his direct appeal include insufficiency of evidence to sustain a conviction of murder in the first degree and conspiracy, admission of hearsay statements by alleged co-conspirators without proper foundation, failure of the court to direct an acquittal in this case in light of a jury acquittal of a co-conspirator, prejudice to appellant in permitting the jury to know of the verdict of not guilty which had been rendered in favor of one of the co-conspirators, and allegedly improper remarks by the prosecuting attorney in his closing address.