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decided: October 3, 1975.



John J. Dean, John H. Corbett, Jr., Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, Asst. Dist. Attys., Pittsburgh, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case. Pomeroy, J., filed a dissenting opinion. Eagen, J., dissents.

Author: Nix

[ 466 Pa. Page 316]


This appeal arises as a result of appellant's conviction of murder in the second degree for his participation in the fire-bombing death of Mrs. Mary Amplo. On the

[ 466 Pa. Page 317]

    evening of April 6, 1968, a firebomb was thrown through the living room window of the home of the victim, igniting her clothing and causing severe burns which ultimately resulted in her death two months later.

Before addressing the merits, we deem it appropriate to comment upon the procedure followed in this case. First, immediately after the jury announced its verdict, sentence was imposed. Thereupon the trial court advised appellant of his right to file post-trial motions and in event of the denial of these motions, he was advised of his right of appellate review. The Public Defender was appointed to represent him in these proceedings. This is clearly in violation of our present rules of criminal procedure. The Comment to Pennsylvania Rules of Criminal Procedure 1123, which was adopted June 8, 1973 (effective July 1973), states:

"Post-verdict motions must be decided before sentencing, because the appeal lies from the final Order of the trial court, which includes sentence. See Appellate Court Jurisdiction Act, 17 P.S. ยงยง 211.102(6), 211.202(1), and 211.302."

See Pa.R.Crim.P. 1405, Comment, relating to the sentencing procedure which provides:

"The sentencing proceeding should not take place until all post-verdict motions have been disposed of, . . ." (This Rule was adopted July 23, 1973) (Effective date October, 1973).*fn1

Recent decisions of this Court have stressed the importance of post-trial motions to the appellate process. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d

[ 466 Pa. Page 318267]

(1974); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). We therefore take this opportunity to emphasize the need for trial courts to comply with our rules requiring the disposition of these motions before the imposition of sentence.

Subsequently, post-verdict motions were filed with the trial court. After being directed by the court en banc, to file a brief, appellant's counsel sent a letter to the trial judge in which he stated inter alia:

". . . after studying the Motion and Transcript of said case, it is my opinion there is no legal basis to the Appeal.

Alternately, filing a Brief in this matter said above would probably not convince the Court to reverse said conviction."*fn2

Thereupon the court en banc entered an order striking the motions for a new trial and in arrest of judgment after finding that these motions had not been properly prosecuted and were therefore abandoned. No appeal was taken from this order.*fn3

On January 15, 1973, Webster filed a petition seeking post-conviction relief and, after a counseled evidentiary hearing, the court entered an order permitting a direct appeal to be entered as if timely filed but rejected the other bases for post-conviction relief. Although Webster alleged ten grounds in support of the prayer of the petition in addition to the alleged denial of his right to appeal in the proceedings below, he subsequently appealed the denial of relief to this Court raising only the issue of

[ 466 Pa. Page 319]

    ineffective assistance of trial counsel. In an opinion decided May 22, 1974, this Court affirmed the ruling of the lower court as to this issue. Commonwealth v. Webster, 457 Pa. 101, 320 A.2d 115 (1974). The matter presently before us is a direct appeal pursuant to the ruling of the post-conviction hearing court. In this appeal, appellant has chosen to raise two of the issues formerly presented in his post-conviction petition.

Here again, the procedure followed in the court below is at variance with that suggested by this Court. We have stated that where a post-conviction court determines that a petitioner is entitled to a direct appeal, no decision should then be made on other bases alleged therein for post-conviction relief. See Commonwealth v. Bricker, 458 Pa. 367, 369, n. 2, 326 A.2d 279, 280 (1974). See also, Commonwealth v. Harris, 443 Pa. 279, 278 A.2d 159 (1971); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d ...

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