Appeal from the Opinion and Order of the Court of Common Pleas of Lancaster County, Pa., dated Oct. 24, 1975, Bucher, J., (No. 1104, 1283, 1284 of 1973). Criminal. Appeal from the Opinion and Order of the Court of Common Pleas of Lancaster County, Pa., dated Nov. 7, 1975, Brown, J. (No. 1285, 1286, 1287 of 1973). Criminal.
Alan N. Linder, Pittsburgh, and Wayne G. Hummer, Jr., Lancaster, for appellant.
Louise G. Herr, Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., notes his dissent as to indictments Nos. 1104, 1283, and 1284.
[ 247 Pa. Super. Page 489]
These appeals are consolidated for convenience. However, because they have different procedural histories, and because our disposition of them is not the same, we shall discuss them separately.
Indictments Nos. 1104, 1283, and 1284
On September 28, 1973, appellant was convicted, after trial before a jury, of burglary and larceny, corrupting the morals of a minor, and filing a false criminal report. No post-verdict motions were filed, and on December 14, 1973, appellant was sentenced. On January 14, 1974, he appealed to this court. While this appeal was pending he filed a petition for relief under the Post-Conviction Hearing Act*fn1 in which he alleged that his trial counsel had been ineffective. On December 17, 1974, with the assistance of PCHA counsel, appellant filed a supplemental PCHA petition. Meanwhile, on December 11, 1974, this court decided appellant's appeal. Commonwealth v. Dimitris, 231 Pa. Super. 469, 331 A.2d 701 (1974). Because appellant had not been advised of his right to file post-verdict motions, Pa.R.Crim.P. 1123(c), we remanded the case to the trial court to allow appellant to file such motions nunc pro tunc.
[ 247 Pa. Super. Page 490]
At this stage it would have been the proper course for appellant to file post-verdict motions, and, if they were denied, appeal to this court nunc pro tunc. Instead, on January 31, 1975, the lower court informed appellant of his right to file post-verdict motions and to appeal from the denial of them, and then proceeded at once to hear appellant's PCHA claims. On February 6, 1975, appellant did file post-verdict motions, but according to the lower court's opinion in the PCHA proceedings these motions have never been argued or decided.
Ordinarily, the failure to file an appeal or to pursue an appeal once it has been filed compels a finding that the claims in question have been waived, under § 1180-4(b)(1) of the PCHA Act. See Commonwealth v. Beatty, 236 Pa. Super. 137, 344 A.2d 591 (1975). Here, however, it would not be accurate to say that appellant did not pursue his appeal: since the trial court has never ruled on his post-verdict motions, he has had no order to appeal from. Furthermore, aside from boiler-plate motions, his post-conviction motions are roughly equivalent to the claims advanced and decided in the PCHA proceeding from which the present appeal is taken. We therefore conclude that it is both fair and efficient to consider those claims now, as if appellant and the lower court had followed correct procedure.
Appellant claims that his trial counsel was ineffective because he did not request a hearing on appellant's competency to stand trial.*fn2 In support of this claim appellant offered the following evidence at his PCHA hearing: On July 28, 1973, while incarcerated in Lancaster County Prison pending trial, he "lost all feelings and all desire to live" and "couldn't handle it anymore," and therefore "just started cutting away at [him]self" with his razor blade. More than one hundred sutures were required to ...