Appeal from the Judgment of Sentence imposed March 28, 1968, of the Court of Common Pleas of Berks County, Criminal, at No. 265 June Term, 1967. Appeal from the Order dated January 7, 1976, of the Court of Common Pleas of Berks County, Criminal, at No. 265 June Term, 1967.
David R. Eshelman, Assistant Public Defender, Reading, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., dissents. Spaeth, J., files a dissenting opinion.
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This case presents two appeals arising from the same fact situation. The appeal at No. 928 is a direct appeal from a judgment of sentence. The appeal at No. 929 is an appeal from an order dismissing the appellant's post-conviction petition. We affirm the order dismissing the post-conviction petition and affirm the judgment of sentence.
The facts upon which both appeals are based are as follows: On the evening of April 28, 1966, the complainant was delivering clothes to customers for her employer, Society Cleaners. On one of her deliveries, appellant Howard Olsen jumped from a nearby car, held the complainant around her waist, and placed a metallic object against her neck. The complainant was forced into the front seat of the car which was being driven by Thomas Lutz.
After driving to a secluded spot, Thomas Lutz forced the complainant into the rear seat of the automobile, where he attempted forcibly to have sexual relations with her. She was then forced back into the front seat, and Thomas Lutz drove the car to New York City. En route, appellant placed his hands on the complainant's breasts and on other parts of her body, despite her objections. While in New York City, the complainant escaped from her captors.
Appellant was tried before a jury on March 25 and 26, 1968. Appellant chose to represent himself. However, the court appointed a public defender to aid appellant in conducting the trial. The jury found appellant guilty of Assault and Battery, Assault with Intent to Ravish, Indecent Assault, Kidnapping for Extortion, and five counts of Conspiracy.
On March 28, 1968, appellant and his appointed counsel appeared to argue post-trial motions. At that time, appellant withdrew his motion for a new trial and stated that he did not wish to appeal. The court then granted appellant's
[ 247 Pa. Super. Page 518]
motion in arrest of judgment on the count of Kidnapping for Extortion and on two counts of Conspiracy.
On October 22, 1975, appellant filed a petition under the Post Conviction Hearing Act (PCHA),*fn1 alleging that he had been denied his right to effective assistance of counsel and his right to appeal. Counsel was appointed and on December 31, 1975, an amended petition was filed. A hearing was held on January 7, 1976.
At the hearing, appellant admitted that he had asked to represent himself at trial, but only because he had not seen an attorney prior to that time. Appellant also testified that he had withdrawn his motion for a new trial because his attorney had told him that by doing so he could avoid conviction of kidnapping and his sentence would thus be reduced.
The PCHA court held that appellant had voluntarily and intelligently waived his right to counsel and that he had voluntarily and intelligently waived his right to appeal. The court granted appellant the right to appeal the legality of the sentence and denied all other relief.
On appeal from the PCHA court's dismissal of his petition, appellant first contends that he was denied his right to counsel at trial. In order to be eligible for PCHA relief, appellant must prove that the issue entitling him to relief has not been finally litigated or waived. 19 P.S. § 1180-3(d). An issue is waived if the petitioner knowingly and understandingly failed to raise it on appeal, the issue could have been so raised, and the petitioner is unable to prove the existence of extraordinary circumstances justifying his failure to raise the issue. 19 P.S. § 1180-4(b).
There is no doubt that the denial of counsel could have been raised on direct appeal from appellant's judgment of sentence if appellant had included it as an issue in his post-trial motions. The Commonwealth contends that appellant voluntarily and intelligently withdrew his motion for a
[ 247 Pa. Super. Page 519]
new trial at the argument on post-trial motions. It is indisputable that a defendant may waive his right to file post-trial motions. Pa.R.Crim.P. 1123(b). If he does so, he waives for purposes of appeal any issues which could have been included in the post-trial motions. ...