Commonwealth v. Goodenow

41 Pa. D. & C.4th 383, 1999 Pa. Dist. & Cnty. Dec. LEXIS 191
CourtPennsylvania Court of Common Pleas, Bradford County
DecidedApril 23, 1999
Docketno. 98CR000331
StatusPublished

This text of 41 Pa. D. & C.4th 383 (Commonwealth v. Goodenow) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bradford County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Goodenow, 41 Pa. D. & C.4th 383, 1999 Pa. Dist. & Cnty. Dec. LEXIS 191 (Pa. Super. Ct. 1999).

Opinion

MOTT, J.,

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 rape1 in accord with a plea agreement that called for the dismissal of all the other charges against him. At that plea proceeding, the appellant specifically acknowledged that he had discussed his case with his counsel and that he was satisfied with his counsel’s representation of him in this case. A sentence was subsequently imposed on the appellant and, as part of that sentencing order, we granted the Commonwealth’s request to dismiss the remaining charges. The appellant has now appealed from that order.

[385]*385Through his counsel, the appellant has filed a statement of matters complained of on appeal raising only one issue. He seeks to nullify the consequences of his plea by alleging the ineffective assistance of counsel. Such a claim has never been raised in this court. The appellant’s statement pursuant to Pa.R.A.P. 1925(b) is the first time that this issue has been asserted. Accordingly, this court is of the view that the issue has not been properly preserved for review on direct appeal and has been waived.

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); [386]*386Fisher v. Brick, 358 Pa. 260, 264, 56 A.2d 213, 215 (1948); Parke v. Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Co., 334 Pa. 417, 419, 6 A.2d 304, 305 (1939) (citing Montgomery County Bar Association v. Rinalducci, 329 Pa. 296, 197 A. 924 (1938)). See generally, 2 P.L.E., Appeals §101 (2d ed.). There are very sound reasons for this long-standing doctrine, not the least of which are that courts will not need to expend time on issues which have not been raised and properly pursued, that trial courts will be given the first opportunity to correct any actual error and, thus, obviate the need for further proceedings, and that appellate courts, therefore, will be free to give more exact attention to alleged errors that are properly preserved for review. Commonwealth v. Clair, 458 Pa. 418, 421-22, 326 A.2d 272, 273-74 (1974). The adage that “[o]rderly judicial procedure requires that nothing more be passed upon by a court than the justiciable question posed for its decision,” Robinson Township School District v. Houghton, 387 Pa. 236, 240, 128 A.2d 58, 60 (1956) (emphasis added), is another phrasing of the common-law principle.

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).2 Implicit in the principle is the idea that an issue must be properly raised in the lower court so that it can be decided by that lower court, so that the higher court can then perform its proper function and review the lower court’s decision. It is, after all, the decision of the trial court on a particular issue that is ultimately reviewable, and traditionally, [387]*387if the trial court reached the correct result on the issue, its decision on that issue was affirmed even if its reasoning may have been flawed.

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. 1410,3 and he did not file such a motion. This holding, however, appears to contradict our Supreme Court, which has stated that “[when] present counsel was appointed prior to the conclusion of post-trial motions, trial counsel’s ineffectiveness should have been raised at that point. Because it was not, the issue is waived.” Commonwealth v. Miller, 541 Pa. 531, 557 n.22, 664 A.2d 1310, 1323 n.22 (1995) (the court, nevertheless, went on to consider the issue because of the relaxed waiver rules for capital cases applicable in that [388]*388case).4 The Wertelet court avoided the basic common-law principle of waiver by reasoning that for purposes of appellate review it is only necessary for a lower court to be able to address an issue, rather than being able to dispose of an issue. The court stated that since Pa.R.A.P. 1701(b)(1) allows lower courts to take actions that are “otherwise ancillary to the appeal,” Wertelet at 355, 666 A.2d at 1089, a lower court could “conduct an evidentiary hearing, file findings of fact and conclusions of law, and otherwise address an issue of ineffectiveness [raised for the first time on appeal], only being prevented from entering a dispositional order.” Id. at 355, 666 A.2d at 1088. The court reasoned that this manner of raising an issue was appropriate for two reasons: First, the court said that “the optional nature” of post-sentence motions under Pa.R.Crim.P. 1410 would be obviated if an issue that can only be raised post-sentence or post-verdict was waived if not first raised in the trial court. Id. at 354, 666 A.2d at 1088. Second, the court said that since there is only 10 days allowed to file a post-sentence motion under [389]

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Bluebook (online)
41 Pa. D. & C.4th 383, 1999 Pa. Dist. & Cnty. Dec. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-goodenow-pactcomplbradfo-1999.