Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1969, Nos. 97, 98 and 99, in case of Commonwealth of Pennsylvania v. Bernell Sumpter.
Sallie Ann Radick and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.
Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J. Concurring Opinion by Hoffman, J.
[ 222 Pa. Super. Page 284]
Appellant Bernell Sumpter, was charged with sodomy, rape, robbery, armed robbery, indecent assault, indecent liberties and corrupting the morals of a minor. He waived trial by jury, and on January 16, 1970, was adjudged guilty on all counts; he was sentenced to an aggregate term of not less than ten nor more than twenty years in prison. No post-trial motions were filed.
[ 222 Pa. Super. Page 285]
He now appeals from the denial of his petition brought pursuant to the Post Conviction Hearing Act.*fn1 After a hearing, the court denied appellant's P.C.H.A. petition, but granted him leave to appeal the legality of his sentence nunc pro tunc. The only question for review is whether appellant is estopped from challenging the legality of his conviction by waiver of this right to file post-trial motions.
Following his finding the appellant guilty on all counts, the trial judge advised appellant of his right to file post-trial motions within 7 days and of his right to be afforded counsel for that purpose. After an off-the-record discussion between appellant and his court-appointed counsel, the record indicates the following colloquy: "Mr. Baxter [Counsel for Appellant]: Your Honor, the defendant has asked me to put on the record at this time that he would prefer to be sentenced right now rather than have a pre-sentence investigation. The Court: That is his desire, is this correct? The Defendant: Yes, sir. The Court: Mr. Sumpter, you fully understand your right to file post-conviction motions within a period of seven days, you fully understand that? The Defendant: Yes, sir. The Court: You understand that you would have a right to ask for a new trial and allege any errors that may have been made in the trial, do you understand that? The Defendant: Yes, sir. The Court: Are you telling this Court that you don't want to do that? The Defendant: No, sir. The Court: Is it your desire to be sentenced now? The Defendant: Yes, sir. . . ." (N.T. 175-76) Sentence was imposed, and appellant was advised by the court of his right to appeal from the sentence within 45 days. No post-trial motions were filed. During all of the
[ 222 Pa. Super. Page 286]
proceedings, appellant was represented by court-appointed counsel.
Subsequently, in three letters dated January 28, 1970, February 6, and March 8, appellant advised the trial judge that he wished to exercise his right of appeal. As the trial judge was on vacation during this time, these letters were not brought to his attention until after the expiration of the 45-day period. On March 16, 1970, a letter was forwarded to the office of the Public Defender by Harry Segal, Chief Minute Clerk, advising of appellant's desire to have counsel appointed to prosecute his appeal.
On April 9, 1970, an appeal from the judgment of sentence was filed in this Court. On December 14, 1970, appellant's petition to remand to the lower court for the purpose of filing a motion for a new trial was granted. This remand was ...