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 ...