No. 8 March Term 1978, Appeal from the Order of the Court of Common Pleas of Erie County, Criminal Division, No. 1315 of 1974.
James K. McNamara, Erie, Court-appointed, for appellant.
Robert H. Chase, Dist. Atty., Erie, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., filed a concurring opinion. Pomeroy, J., filed a dissenting opinion in which Larsen, J., joined.
On February 22, 1975, Thomas J. Taylor was convicted by a jury of voluntary manslaughter in Erie County. Post-verdict motions were filed on his behalf.*fn1 However, immediately prior to sentencing, the post-verdict motions were withdrawn. Judgment of sentence of five to ten years imprisonment was imposed. On May 2, 1977, Taylor, pro se, filed a "Petition to Reinstate Appeal Rights" with this Court. We
remanded to the trial court for proceedings to determine whether Taylor knowingly and intelligently waived his appellate rights.
Pursuant to our order of remand, the court appointed counsel to represent Taylor and conducted an evidentiary hearing. The court found Taylor's decision to withdraw post-verdict motions was "knowingly and intelligently [made] with a full consideration of the consequences." As a result, Taylor's request for reinstatement of direct appeal rights was denied. This appeal followed.
Taylor argues the evidence presented at the remand hearing does not support the court's conclusion he knowingly and intelligently waived his appellate rights. We agree.
A person has the right to a direct appeal, but may waive this right. Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970). The waiver of the right to appeal may be made by withdrawing post-verdict motions. Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975). "However, in order to be effective as a waiver, the withdrawal of post-verdict motions must have been made with a full knowledge and understanding of its consequential effect on the appellant's right to appeal." Commonwealth v. Williams, supra at 591, 330 A.2d at 855. To that end ". . . the accused must be advised that a failure to raise an issue in post-verdict motions precludes raising that issue on appeal." Commonwealth v. Tate, 473 Pa. 478, 480, 375 A.2d 341, 342 (1977).
"Because [post-verdict] motions are a critical step in the post-conviction review process, we will scrutinize closely any waiver of the [appeal rights such motions preserve] in order to ensure the appellant has acted voluntarily and with a full understanding of his rights." Commonwealth v. Coleman, 458 Pa. 324, 325-26, 327 A.2d 77 (1974). The evidence presented at the remand hearing fails to establish Taylor fully understood the consequences of withdrawing his post-verdict motions.
To assure that any waiver of the right to appeal is knowing and intelligent, this Court has promulgated Pa.R.Crim.P. 1123(c)*fn2 to ensure defendants are informed not only that they have a right to appeal, but also that any issue they wish to raise on appeal must be first raised in post-verdict motions. Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978). A review of the record in the instant case reveals the trial court did not fully comply with Rule 1123 since there is no "on the record" colloquy indicating Taylor was made aware, upon being found guilty, of his appeal rights.
The Commonwealth argues the testimony of Taylor's trial counsel at the evidentiary hearing establishes Taylor was fully aware of his appeal rights and the consequences of the withdrawal of post-verdict motions. At the remand hearing, Taylor's counsel did not testify he had at any time informed Taylor that by withdrawing the post-verdict motions he would be waiving the right to raise on appeal any issue which could be raised in post-verdict motions. Counsel only testified he could not recall specifically informing Taylor that, by withdrawing his post-verdict motions, he would be waiving his right to challenge on appeal the admission of testimony ...