decided: April 28, 1978.
COMMONWEALTH OF PENNSYLVANIA
RICHARD W. RINIER, JR., APPELLANT
Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.
D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Price, J., concur in the result. Spaeth, J., dissents and would remand for filing of post-verdict motions nunc pro tunc. Commonwealth v. Cathey,
[ 255 Pa. Super. Page 168]
Appellant contends that the record does not demonstrate that he voluntarily and knowingly withdrew his post-verdict motions. As a remedy, appellant requests that we permit him to file post-verdict motions nunc pro tunc. Instead, we remand for an evidentiary hearing to determine whether appellant voluntarily and knowingly withdrew his post-verdict motions.
[ 255 Pa. Super. Page 169]
On July 21, 1976, a Lancaster County Court of Common Pleas jury adjudged appellant guilty of rape*fn1 and theft by unlawful taking.*fn2 After the jury returned its guilty verdicts, the lower court advised appellant that "you have the right to file a verbal motion for a new trial, which must be put in writing within seven days. Having been so advised, you will govern yourself accordingly." Appellant's trial counsel, Assistant Public Defender Howard Mummau, responded by asking leave of the court to file written motions within seven days; the court granted this request.
On July 28, 1976, appellant's counsel filed timely motions requesting either an arrest of judgment or a new trial.*fn3 These motions alleged that the Commonwealth failed to produce sufficient evidence to sustain the guilty verdicts and that the verdicts were contrary to the evidence, the weight of the evidence, and the law. The motions also provided that appellant reserved the right to file supplemental reasons for a new trial upon transcription of the notes of testimony. Appellant's counsel attached an affidavit in which he affirmed that "the within Motions are not made for the purpose of delay, but because it is believed that an injustice has been suffered. Further, Richard W. Rinier, defendant, requested that said Motions be made."
On November 3, 1976, another Assistant Public Defender, Edward F. Browne, Jr.,*fn4 acting on appellant's behalf, filed supplemental motions for a new trial. These motions alleged that the lower court erred in (1) granting the Commonwealth's Rule 1100(c) petition, (2) permitting appellant's wife to testify, and (3) denying appellant's trial motion for appointment of new counsel. A final motion asserted that
[ 255 Pa. Super. Page 170]
after-discovered evidence necessitated a new trial. On November 5, 1976, Attorney Browne filed an application for an evidentiary hearing on appellant's contention that after-discovered exculpatory evidence made a new trial imperative; the Commonwealth consented to this request. On December 7, 1976, the lower court granted this application and scheduled a hearing for January 4, 1977. At the conclusion of this hearing, the court reserved its decision on appellant's contention.
On January 24, 1977, appellant filed a handwritten petition which requested the appointment of new counsel. Appellant asserted that continued representation by Attorney Browne would constitute a conflict of interest because appellant wished to raise the ineffective assistance of his trial counsel, a member of the same Public Defender office as Browne. Appellant's petition enumerated several alleged instances of ineffective representation; one allegation accused trial counsel of failure to communicate with appellant after trial and refusal to file certain post-verdict motions on appellant's behalf. On January 28, 1977, Browne filed a petition which cited a possible conflict of interest and therefore requested that the court permit him to withdraw from further representation of appellant. On the same day, the lower court appointed Penn B. Glazier, a private attorney, to represent appellant.
On February 25, 1977, appellant's new attorney filed an application for an evidentiary hearing on appellant's contention that his trial counsel rendered ineffective assistance. The Commonwealth's answer acquiesced in appellant's request because ". . . the issue of whether Defendant was afforded effective assistance of counsel at trial is inextricably tied to the validity of the other issues which Defendant has raised in post-trial motions." Therefore, the Commonwealth desired that the hearing should be held prior to the disposition of appellant's post-verdict motions. On March 4, 1977, the lower court granted appellant's application and scheduled a hearing for April 14, 1977.
[ 255 Pa. Super. Page 171]
On April 13, 1977, appellant filed a petition for leave to withdraw his outstanding post-verdict motions. The petition provided: "The Defendant, Richard W. Rinier, Jr., having been fully advised of his rights by counsel, Penn B. Glazier, Esquire, does hereby petition your Honorable Court for leave to withdraw the Post Verdict Motions heretofore filed by him." Both appellant and his attorney, Penn Glazier, signed the petition. On the same day, the lower court granted the petition without conducting a hearing or examining appellant on his decision.
On June 3, 1977, the lower court sentenced appellant to a term of imprisonment of not less than time served nor more than 3 1/2 years on the theft conviction and to a concurrent term of 3 years probation on the rape conviction. This appeal followed; Public Defender Edward F. Browne, Jr. has submitted a brief on appellant's behalf.
Appellant contends that because he did not knowingly and voluntarily withdraw his post-verdict motions, he should be allowed to file post-verdict motions nunc pro tunc.*fn5 Our courts have repeatedly held that a defendant's failure to raise specific issues in post-verdict motions*fn6 constitutes a
[ 255 Pa. Super. Page 172]
forfeiture of his right to have these issues considered on direct appeal. See, e. g., Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Blair, 460 Pa. 31, 33, n. 1, 331 A.2d 213, 214, n. 1 (1975). However, equally well-established is the proposition that in order for a waiver to be effective, ". . . the record must affirmatively demonstrate that the appellant was aware of his right to file posttrial motions and that he knowingly and intelligently decided not to do so." Commonwealth v. Schroth, 458 Pa. 233, 235, 328 A.2d 168, 169 (1974). See also Commonwealth v. Tate, 473 Pa. 478, 375 A.2d 341 (1977); Commonwealth v. Brown, 248 Pa. Super. 289, 375 A.2d 102 (1977). A review of Pennsylvania case law indicates that our appellate courts have adopted two different remedies when the record on direct appeal does not affirmatively demonstrate that an appellant has been fully informed of the rights and obligations attendant to post-verdict motions: (1) a remand for an evidentiary hearing to determine whether appellant voluntarily and knowingly waived his post-verdict motion rights, or (2) a remand to allow appellant to file post-verdict motions. We will review each line of cases in some detail in an attempt to reconcile this ostensible conflict in the case law.
[ 255 Pa. Super. Page 173]
Ash's trial counsel informed Ash of the drastic repercussions that a failure to file post-verdict motions would have on his right to appeal. Consequently, the Court remanded the case to the lower court with instructions to permit Ash to file post-verdict motions nunc pro tunc.
Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975) (hereinafter Tate I), tracks the line of analysis employed in Schroth and Ash I. In Tate I, appellant, convicted of murder in the second degree, failed to file any post-verdict motions. On direct appeal, he raised specific issues for the Supreme Court's consideration. The Court perused the record and found no indication that appellant had voluntarily and knowingly waived his right to file post-verdict motions. Refusing to infer a waiver of precious appellate rights from a silent record, the Court remanded for a determination of whether appellant made a valid surrender of his post-verdict motion rights. The lower court held the required hearing and ruled that Tate had made such a waiver. Tate appealed and, in its most recent pronouncement on the standards governing a waiver of post-verdict motion rights, the Supreme Court reversed. See Commonwealth v. Tate, 473 Pa. 478, 375 A.2d 341 (1977) (hereinafter Tate II). The Court stated: "In order for a waiver to be effective in this context, the accused must be advised that a failure to raise an issue in post-verdict motions precludes raising that issue on appeal. Pa.R.Crim.P. 1123(c)(3)." Supra, 473 Pa. at 480, 375 A.2d at 342. The record disclosed that the trial court had abdicated its obligation to warn appellant pursuant to Rule 1123(c)(3). Moreover, the transcript of the evidentiary hearing on remand showed only that Tate's counsel had "discussed" post-verdict motions with his client; the transcript did not reflect the content of this discussion and hence gave no guarantee that counsel's advice had effectively remedied the trial court's disregard of its duty under Rule 1123(c). Because the Supreme Court could not determine, even after an evidentiary hearing, whether counsel specifically informed Tate of all pertinent ramifications of failing to file post-verdict motions, the Court remanded the case with
[ 255 Pa. Super. Page 175]
directions to permit Tate to file post-verdict motions nunc pro tunc.
The lessons of Schroth, Ash I and II, and Tate I and II may be succinctly stated: if a trial court fails to advise a defendant on the record of the consequences of failing to file post-verdict motions and if the defendant takes a direct appeal without filing any post-verdict motions, the appellate court should remand for an evidentiary hearing on whether the defendant knowingly and voluntarily waived his right to file post-verdict motions. See Schroth; Ash I; Tate I. At this hearing, defendant's trial counsel may testify that he fully warned his client that failure to file specific post-verdict motions would work a forfeiture of any issues raised on direct appeal, and that his client nevertheless freely decided to forego post-verdict motions. Such testimony, if believed, would effectively cure the trial court's failure to observe the mandates of Rule 1123(c) and would adequately support a finding that the defendant knowingly and voluntarily waived his right to preserve issues for appellate review.*fn7 See Ash II; Tate II. However, if, despite an evidentiary hearing, the record still shows that neither counsel nor trial court specifically informed the defendant of the warnings required by Rule 1123(c), then the defendant must be afforded an opportunity to file post-verdict motions nunc pro tunc. See Ash II; Tate II. See also Commonwealth v. Williams, 241 Pa. Super. 226, 360 A.2d 735 (1976); Commonwealth v. Swain, 237 Pa. Super. 322, 354 A.2d 256 (1975); Commonwealth v. Wardell, 232 Pa. Super. 468, 334 A.2d 746 (1975).
Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975), illustrates the line of cases which affords a different remedy to a defendant when the record on direct appeal fails to indicate affirmatively that he knowingly and voluntarily
[ 255 Pa. Super. Page 176]
waived his right to file post-verdict motions pursuant to Rule 1123. Williams and related cases sanction, in certain circumstances, a remand for the automatic filing of post-verdict motions nunc pro tunc rather than for an evidentiary hearing. In Williams, the defendant pleaded guilty to aggravated robbery and a general charge of murder; at a degree of guilt hearing, he was found guilty of murder in the first degree. Post-verdict motions were made orally but later withdrawn at the defendant's request. On appeal, Williams raised several issues not considered by the lower court. The Supreme Court reviewed the record and discovered that the trial court had instructed Williams that he could file an appeal even if he withdrew his post-verdict motions. This affirmative misrepresentation precluded a finding that Williams had a full appreciation of the consequences of withdrawing his post-verdict motions. Accordingly, the Supreme Court remanded the case to the trial court for the filing of post-verdict motions.
Commonwealth v. Doman, 237 Pa. Super. 415, 352 A.2d 157 (1975), is analagous in reason and result to Williams. In Doman, the defendant, through his counsel, filed post-verdict motions. However, at the sentencing hearing, Doman's counsel suggested that his client would withdraw his post-verdict motions if the court would give Doman a sentence concurrent to the one he was then serving on an unrelated conviction. The court accepted this bargain without conducting any examination of Doman's understanding of the consequences of withdrawing his post-verdict motions or even securing Doman's personal consent to the arrangement. On appeal, Doman raised a challenge to the sufficiency of the evidence to sustain his larceny conviction. Because Doman had withdrawn his post-verdict motion raising this issue, we refused to treat it on the merits. However, because the record did not demonstrate that the lower court informed Doman at the sentencing hearing of the consequences of withdrawing his post-verdict motions, we remanded
[ 255 Pa. Super. Page 177]
to allow Doman another opportunity to file post-verdict motions.*fn8
Commonwealth v. Brown, 248 Pa. Super. 289, 375 A.2d 102 (1977), presents a very recent example of when a court on direct appeal should remand for the automatic filing of post-verdict motions nunc pro tunc instead of an evidentiary hearing. In Brown, the defendant's counsel failed to file any specific post-verdict motions; he merely filed the boilerplate contentions condemned by our Supreme Court in Commonwealth v. Blair, supra. However, our review of the record revealed the lower court's failure to inform Brown of the necessity of filing specific motions in order to preserve his claims for appellate review. Rule 1123(c)(3). Because the record evidenced that appellant had not been apprised of the requirements of Rule 1123(c), we remanded the case for the filing of post-verdict motions nunc pro tunc.*fn9
[ 255 Pa. Super. Page 178]
At first blush, the remedy invoked in Schroth, Ash I and Tate I appears inconsistent with that endorsed in Williams, Doman, and Brown. Upon closer inspection, however, these cases can be easily harmonized. In the former trilogy of cases, an evidentiary hearing was appropriate, despite the trial court's failure to warn the defendant on the record of the consequences of failing to file post-verdict motions, because the advice of counsel may have served as an effective substitute for the trial court's omission. If counsel thoroughly warned the defendant of all pertinent consequences, a finding of a voluntary and knowing waiver of post-verdict motion rights could be sustained. By contrast, in Williams, Doman, and Brown, it is readily apparent that
[ 255 Pa. Super. Page 179]
any advice given by counsel outside the record could not effectively replace the trial court's neglect to give the mandatory Rule 1123(c) admonitions. In Williams, the trial court instructed the defendant that he could appeal even if he withdrew his post-verdict motions. Regardless of any advice his counsel may have proffered, this affirmatively misleading representation on the part of the trial court, as opposed to mere neglect to warn a defendant pursuant to Rule 1123(c), precluded a finding of a knowing and voluntary waiver.*fn10 In Doman, a lower court allowed a defendant to withdraw his post-verdict motions in its presence without ascertaining in any way whether the defendant fully understood the consequences of his actions. Even if counsel had elucidated the operation and significance of post-verdict motions to his client before the sentencing hearing, the court's failure to examine Doman on the consequences of his action at the very moment of his decision vitiated any finding of a knowing and voluntary waiver.*fn11 Finally, in
[ 255 Pa. Super. Page 180]
court failed to give complete Rule 1123(c) admonitions and that counsel's advice did not or could not efficaciously substitute for this omission, then the appellate court should remand to allow the defendant to file post-verdict motions.*fn13
Applying these principles to the instant case, we believe that a remand for an evidentiary hearing pursuant to Schroth, Ash I and Tate I is in order. The trial court failed to comply with Rule 1123(c); in particular, the court failed to advise appellant that he had the right to "the assistance of counsel in the filing of [post-verdict] motions and on appeal of any issues raised therein," Rule 1123(c)(1), and that "only the grounds contained in [post-verdict] motions may be raised on appeal." Rule 1123(c)(3). However, the record does not preclude the possibility that one of appellant's three attorneys may have advised appellant of the significance of post-verdict motions and of the consequences which attach to a failure to file these motions. Indeed, it is evident that appellant discussed post-verdict motions with his various attorneys. For example, Appellant's trial counsel, Howard Mummau, filed an affidavit accompanying his client's original post-verdict motions; this affidavit stated that he filed the post-verdict motions at appellant's behest. In his January 24, 1977 petition requesting
[ 255 Pa. Super. Page 182]
the appointment of new counsel, appellant charged that his trial attorney had refused to file requested post-verdict motions. Finally, appellant's April 13, 1977 petition for leave to withdraw his post-verdict motions stipulated that his counsel, Penn B. Glazier, fully advised him of his rights; appellant signed this petition. Thus, the record betokens appellant's active participation in the post-verdict motion process. Nevertheless, the present state of the record does not permit a finding that appellant knowingly and voluntarily withdrew his post-verdict motions. While we know that counsel and appellant had discussions concerning post-verdict motions, the record does not disclose the content or extent of these discussions, and we cannot determine whether appellant received specific advice regarding the sweeping impact a withdrawal of his motions would have upon his right to appeal. Under these circumstances, we must remand for an evidentiary hearing pursuant to Schroth, Ash I, and Tate I. Therefore, we vacate the judgments of sentence and remand for a determination of whether appellant received proper warnings concerning the consequential effect of his action on his right to appeal and whether appellant acted voluntarily, knowingly, and intelligently in withdrawing his post-verdict motions. If the hearing court finds that appellant did not make a knowing, intelligent, and voluntary waiver, it should permit appellant an opportunity to file post-verdict motions nunc pro tunc. If the hearing court finds a valid waiver, it should reinstate the judgments of sentence. Following the hearing court's disposition, either side shall be entitled to file a new appeal.
Judgments of sentence vacated and case remanded for proceedings consistent with this opinion.