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COMMONWEALTH PENNSYLVANIA v. TERRY C. FISHEL (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
TERRY C. FISHEL, APPELLANT



NOS. 11 AND 311 MARCH TERM, 1977, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of York County, at Nos. 1485 and No. 1538 October Sessions, 1974.

COUNSEL

H. Stanley Rebert, Assistant Public Defender, York, for appellant.

Sheryl Ann Dorney, Assistant District Attorney, and Donald L. Reihart, District Attorney, York, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result.

Author: Van Der Voort

[ 251 Pa. Super. Page 530]

The appellant, Terry C. Fishel was convicted, after jury trial, on York County Indictment No. 1485 October Term, 1974, of a single charge of forgery and on York County Indictment No. 1538 October Term, 1974, on two charges of forgery and one charge of burglary. All charges grew out of the burglary of a synagogue and the subsequent forgery of three blank checks taken in the burglary. Following the denial of post-trial motions, he appeals to our Court. Initially, we are faced with a dilemma because of the complicated procedural background of this consolidated appeal. Appeal No. 311 March Term, 1977 is on York County Indictment No. 1485 October Term, 1974; Appeal No. 11 March Term, 1977 is on York County Indictment No. 1538 October Term, 1974.

Appellant was tried on Indictment No. 1485 and Indictment No. 1538 in the same trial. Following a determination of guilt on all charges, written post-trial motions were filed and argued in the lower court. For some reason, only No. 1538 was the subject of direct appeal to this Court, at No. 11 March Term, 1977.

The appellant thereafter, through the vehicle of the Post Conviction Hearing Act ("PCHA") sought to gain the right to appeal his conviction on No. 1485 nunc pro tunc. On an initial PCHA Petition, his request was denied in that all counsel and the lower court shared the belief that No. 1485 had been appealed, along with No. 1538. A second PCHA petition was filed, and it is from the PCHA Court's Order of February 16, 1977, on the second PCHA petition, that the instant appeal is taken at No. 311 March Term, 1977.

At the second PCHA hearing, the lower court was advised that as a result of defense counsel's mistake no direct appeal had in fact been taken from the conviction at No. 1485. The lower court was further advised, however, that the Superior Court had issued an Order, refusing to allow an appeal nunc pro tunc, on No. 1485.*fn1 The lower court then, on February 16, 1977 ordered that the appellant be permitted a direct

[ 251 Pa. Super. Page 531]

    appeal nunc pro tunc on No. 1485. In issuing its Order, the lower court expressed concern and doubt about the validity of its Order, in view of the alleged prior Order of the Superior Court denying the same relief.

Whatever the correct version of events may have been, appellant has taken the instant appeal, docketed at No. 311 March Term, 1977, in our Court, from the February 16, 1977 Order of the PCHA court, rather than from his judgment of sentence on No. 1485. In essence he appeals an Order which granted him the right to take an appeal nunc pro tunc. No other relief was sought at the PCHA hearing which resulted in the February 16, 1977 Order granting him appeal rights. In his brief submitted to this Court, no issue is raised nor discussion directed to the February 16, 1977 Order of the PCHA court from which this appeal arises. Inasmuch as no issue is presented for our review, we could only affirm the Order of February 16, 1977. However, it is readily apparent from his legal brief to this Court, as well as his PCHA efforts in the lower court, that appellant seeks this Court's review of his convictions on Nos. 1538 and 1485, by way of direct appeal. It would serve no useful purpose, and only result in a probable later separate appeal on No. 1485 if our Court denies appellant direct review of his conviction at No. 1485 in this appeal. Moreover, we cannot ignore the fact that a series of errors by counsel and confusion in the lower court caused the complicated web of circumstances in which appellant is now bound. Thus, sua sponte, we will treat this appeal as a direct appeal on Indictment No. 1485, together with our review of the direct appeal on No. 1538.

The appellant raises three claims of trial error. He first maintains that the trial court should have granted his request for mistrial when the jury was made aware of the appellant's failure to pay a hotel and bar bill. It is reasoned that such information improperly introduced facts of other crimes to ...


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