decided: December 1, 1977.
COMMONWEALTH OF PENNSYLVANIA
CLIFTON FAUNTROY, APPELLANT
Suzanna F. Mottola, Carol J. Clarfeld, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Mark Sendrow, Asst. Dist. Atty., Asst. Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts, J., filed a concurring opinion.
Author: Per Curiam
[ 475 Pa. Page 288]
OPINION OF THE COURT
Appellant, Clifton Fauntroy, was found guilty in November, 1973, of murder in the first degree and conspiracy. Post-trial motions were denied, and a judgment of sentence of life imprisonment was imposed on the murder charge;
[ 475 Pa. Page 289]
sentence on the conspiracy charge was suspended. No timely appeal from the judgment of sentence was taken.
In January, 1976, appellant filed a petition under the Post-Conviction Hearing Act*fn1 alleging that he had been denied his rights relative to appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Finding that the Commonwealth had not shown that Fauntroy had waived his appellate rights, the PCHA court granted him leave to file an appeal nunc pro tunc and denied all other relief. Appellant then took this appeal,*fn2 which the record reveals to be from the order of the PCHA court, not from the judgment of sentence.
It is evident from an examination of the briefs filed on appellant's behalf that he intended by this appeal to challenge both the judgment of sentence on the murder conviction (which had been entered only after post-trial motions had been filed and denied) and the denial by the PCHA court of his request for collateral relief other than recognition of his appellate rights.*fn3 We have in this case overlooked the procedural irregularities*fn4 and, having carefully
[ 475 Pa. Page 290]
considered the arguments made by appellant in his briefs, find them to be without merit.*fn5
Judgment of sentence affirmed; order of the court of common pleas denying post-conviction relief affirmed.
ROBERTS, Judge, concurring.
I agree with the majority that appellant's claims are without merit and judgment of sentence should be affirmed. I cannot agree, however, with the majority's suggestion that appellant should not have raised his claim based on after-discovered evidence in this appeal from judgment of sentence, but instead should have raised the claim in a separate appeal from the denial of post-conviction relief.
The post-conviction hearing court ruled that appellant should be allowed to file an appeal as if timely filed from judgment of sentence. Having decided that appellant was entitled to a direct appeal, the hearing court should not have addressed any other claims raised in the petition for post-conviction relief:
"[W]here 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 n.2 (1974). See also, Commonwealth v. Harris, 443 Pa. 279, 278 A.2d 159 (1971); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971). This procedure is preferable since it allows all of the complaints that may be raised to be disposed of in one action."
[ 475 Pa. Page 291]
it was proper for appellant to raise his objection to the post-conviction court ruling on his after-discovered evidence claim in this direct appeal. The majority's suggestion requires needless paperwork by counsel and the courts.*fn2 All issues which can be raised in a direct appeal should be, and there is no need to take a separate appeal from the denial of post-conviction relief.