Commonwealth v. Jerry

470 A.2d 601, 323 Pa. Super. 299, 1983 Pa. Super. LEXIS 4564
CourtSupreme Court of Pennsylvania
DecidedDecember 23, 1983
Docket1192
StatusPublished
Cited by9 cases

This text of 470 A.2d 601 (Commonwealth v. Jerry) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Jerry, 470 A.2d 601, 323 Pa. Super. 299, 1983 Pa. Super. LEXIS 4564 (Pa. 1983).

Opinions

POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying Post Conviction Hearing Act (PCHA)1 relief to appellant, Bernard Jerry.

On March 16, 1977, appellant was convicted by a judge, sitting without a jury, of possession of a controlled substance 2 and theft by receiving stolen property.3 Appellant was sentenced to a term of imprisonment of not less than nine months nor more than eighteen months. No post-verdict motion was filed, and no direct appeal was taken. We must remand for proceedings not inconsistent with this opinion.

On September 2, 1977, appellant filed his first PCHA petition pro se. A hearing was held on June 1, 1978, and the court denied appellant’s petition.

On November 29, 1978, appellant filed his second PCHA petition pro se. The court denied appellant’s petition without a hearing. Appellant’s third pro se PCHA petition was filed in May of 1981. This petition also was dismissed because “all issues raised therein have been previously disposed of by this Court.” Order of Court dated June 23, 1981, at No. 4. There is no transcript of this evidentiary hearing; however, counsel for the appellant and the prosecution entered into a “STIPULATION OF FACTS” which [303]*303stated that an evidentiary hearing was conducted on September 15, 1981. Appellant was permitted to amend his PCHA petition to include an allegation of the ineffective assistance of appellate counsel. The court concluded that appellant did not waive his right to appeal and entered an order allowing appellant the right to appeal nunc pro tunc from the order of court dated June 1, 1978. The court also appointed private counsel to represent appellant on appeal.

Appellant raises three issues: (1) whether the trial court erred in denying appellant’s application to suppress illegally seized evidence because warrants were required; (2) whether the trial court erred in admitting into evidence a statement made by appellant as a result of police interrogation; and (3) whether the trial court erred in ruling that there was sufficient evidence to support appellant’s conviction for theft by receiving stolen property.

The prosecution contends that the issues that appellant raises either have been finally litigated or waived because “appellant’s failure to file post trial motions precludes consideration of those allegations of error raised in his first PCHA petition concerning the admission of certain evidence.” Brief for the Prosecution at 7. We cannot agree with the prosecution’s contention.

To begin with, the PCHA court determined that appellant’s appellate rights were violated. Even the prosecution conceded as much in its “STIPULATION OF FACT” when it stated:

“Any waiver which resulted from the failure to file a timely Notice of Appeal was through no fault of the petitioner and, therefore, cannot be deemed to be knowing and voluntary. Petitioner at all times desired to pursue an appeal from the denial of post conviction relief and in fact believed that such an appeal had been perfected on his behalf.” Record at No. 8, page 2.

Although the prosecution in its stipulation admitted that appellant’s appellate rights were violated at the PCHA stage, this Court concludes that appellant’s failure to file [304]*304post-trial motions does not constitute a waiver because our examination of the record reveals that appellant was not advised properly of his post-trial rights. The Court stated the following:

“THE COURT: I am going to order a pre-sentence report and direct that the Defendant be returned pursuant to the detainer to Beaver County Jail.
You know you have seven days to file post-trial motions on this matter, Mr. Stockey?
MR. STOCKEY: I guess I have to.
THE COURT: I don’t know whether you have to or not. You have to say on the record that you understand you have seven days.
MR. STOCKEY: Right.” (Notes of Testimony, N.T., 3/17/77, at 77-78)

At the time of appellant’s trial, March 17, 1977, appellant should have been informed of his “rights with respect to the filing of post-trial motions [e.g., the right to the assistance of counsel in the filing of the motion and on appeal of any issues raised therein], the time for filing and the waiver consequences of not filing as required by Rule 1123”. Commonwealth v. Vasquez, 268 Pa.Super. 295, 298 n. 4, 408 A.2d 154, 156 n. 4 (1979)4.

Although appellant was advised of the time limit for filing post-trial motions, he was not advised of his right with respect to the filing of post-trial motions nor was he advised of the waiver consequences of not filing a motion in accordance with Pa.R.Crim.P. 1123. Thus, on this record we are unable to agree with the prosecution that “appellant’s failure to file post trial motions precludes consideration of those allegations of error raised in his first PCHA [305]*305petition concerning the admission of certain evidence.” Brief for the Prosecution, supra at 7.

It is well-established that:

“ ‘[When] the trial court [does] not comply with Rule 1123(c), petitioner’s failure to file adequate post-verdict motions cannot be deemed a knowing and intelligent waiver of his right to appeal.’ Commonwealth v. Cathey, 477 Pa. 446, 450, 384 A.2d 589, 591 (1978).” Commonwealth v. Rowe, 268 Pa.Super. 380, 383, 408 A.2d 516, 517 (1979).5

In any event, the issue of whether appellant was deprived of his appellate rights either at the post-trial stage or at the PCHA stage is intertwined in the instant case because the PCHA court concluded that appellant’s appellate rights were violated at the PCHA stage, and our examination of the record also establishes that appellant’s appellate rights were violated at an additional stage, the post-trial stage.6 This is significant because we must analyze the issues appellant has raised in connection with the PCHA Hearing Act which provides in relevant part:

[306]*306Section 9544 of the Post Conviction Hearing Act provides for the following:
(a) Issues finally litigated. — For the purpose of this subchapter, an issue is finally litigated if:
(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling.
(2) The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
(3) The Supreme Court has ruled on the merits of the issue.
(b) Issues waived. — For the purposes of this subchapter, an issue is waived if:

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Commonwealth v. Jerry
470 A.2d 601 (Supreme Court of Pennsylvania, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
470 A.2d 601, 323 Pa. Super. 299, 1983 Pa. Super. LEXIS 4564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-jerry-pa-1983.