Commonwealth v. Fryberger

334 A.2d 743, 232 Pa. Super. 127, 1975 Pa. Super. LEXIS 1365

• Court: Superior Court of Pennsylvania
• Decided: February 27, 1975
• Docket: Appeal, 806
• Status: Published

Opinions

Opinion by

Jacobs, J.,

This is an appeal from the loiver court’s order denying the relief requested by appellant in his PCHA¹ petition. Appellant’s principal contention is that he did not knowingly and understandingly Avaive his right to file post-trial motions. Because Ave agree with appellant, we remand this case to the loAver court and permit appellant to file such motions nunc pro tunc.

The record reveals that appellant Avas charged with playfully or wantonly pointing and discharging a firearm, assault and battery (tAvo counts), rape (four counts), and adultery (four counts). Appellant’s first trial which was held in May of 1972 ended in a mistrial. At the conclusion of appellant’s second trial which was held in September of 1972, the jury found appellant guilty on all four counts of adultery but acquitted him of the other charges. No post-trial motions Avere filed by appellant’s privately-retained counsel. Nonetheless, appellant filed a direct appeal Avith this Court.² That appeal was affirmed per curiam without opinion. Commonwealth v. Fryberger, 226 Pa. Superior Ct. 707, 308 (1973). On November 13,1973, appellant filed a PCHA petition in which he alleged, among other things, that he did not knowingly and under standingly waive his right to file post-trial motions. After an evidentiary hearing in which appellant and his trial counsel testified, the lower court dismissed the petition. This appeal followed.

The notes of testimony of the PCHA hearing reveal that soon after the second trial, appellant’s trial counsel considered the propriety of filing post-trial motions. Counsel eventually came to the conclusion that post-trial motions would be fruitless and related this to appellant. No post-trial motions were filed.

In Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 448, 222 A.2d 427, 429 (1966), our Court recognized: “[A]n accused is entitled to the assistance of counsel in the critical task of taking and perfecting an appeal, unless such right is intentionally and intelligently relinquished. . . . The failure to file [post-trial] motions within the time prescribed by court rule may bar a subsequent appeal by defendant [or limit the arguable issues]. Thus, a defendant’s right to the assistance of counsel in properly perfecting his appeal must, of necessity, include counsel’s assistance in the filing of post-trial motions. Consequently, . . . counsel’s personal conclusion that the filing of post-trial motions is unwarranted should not foreclose a defendant’s right to representation on such motions. Moreover, the decision not to file such post-trial motions, no less than the decision not to file the appeal itself, requires the defendant’s intelligent and understanding appreciation of the consequences of such action.” In Grillo, this Court remanded the case to the lower court with directions to hold an evidentiary hearing to determine the circumstances surrounding appellant’s failure to file post-trial motions.

In the present case, an evidentiary hearing was held at which appellant testified that he was not told what would happen if no post-trial motions were filed or that the failure to file post-trial motions would waive trial errors. Although appellant’s trial counsel testified that appellant agreed with his decision not to file post-trial motions, counsel never testified that he advised appellant of the consequences of the failure to file such motions. When this question was asked: “Isn’t it true you didn’t tell him by not filing his motions he forever gave up his right to appeal upon the merits?”, appellant’s trial counsel responded: “I can’t recall that being discussed.” Thus, appellant’s claim that he did not understandingly waive his right to file post-trial motions is supported by the record.

The lower court stated: “We cannot say that defendant did not knowingly and understandingly waive this right [to file post-trial motions].” However, this does not answer the question before us. A “waiver” is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Thus, if waiver occurred it should be determined affirmatively, not negatively as was done by the court below.

There was nothing on the record in the present case to indicate that appellant had been informed by the court of the consequences of his failure to file post-trial motions. The burden of proving waiver of the right to appeal is on the Commonwealth in silent record cases where the defendant was represented by private counsel or by court-appointed counsel. Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971). Similarly, where the record is bare of any instructions to appellant as to his right to file post-trial motions, the burden of establishing waiver falls on the Commonwealth. See Commonwealth v. Matcheson, 215 Pa. Superior Ct. 371, 259 A.2d 174 (1969) (dissenting opinion).

The Commonwealth in this case has failed to meet its burden. The testimony of both appellant and his trial counsel establishes that appellant was unaware of the consequences of the decision not to file post-trial motions. Moreover, the record does not indicate that appellant Avas advised by the lower court of the effect of the failure to file such motions.

Order reversed and case remanded with instructions that appellant be permitted to file post-trial motions nunc pro tunc.

1 Post Conviction Hearing Act of January 25, 1966, P.L. (1965) 1580, §§1 et seq., 19 P.S. §§1180-1 et seq. (Supp. 1974-75).

2 Because no post-trial motions concerning any alleged trial errors were filed, the only issue argued on appeal was the length of the sentence.