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COMMONWEALTH PENNSYLVANIA v. JAMES MORRIS (10/01/79)

decided: October 1, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES MORRIS, APPELLANT



Nos. 242 and 591 January Term, 1977, Appeal from the Judgment of Sentence Imposed by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment No. 4093, January Sessions 1966; No. 143, November Sessions, 1968; Nos. 1952-1607, May Sessions, 1970

COUNSEL

Maxwell L. Davis, Joel S. Moldovsky, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Paul S. Diamond, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Larsen, J., filed a dissenting opinion.

Author: Nix

[ 486 Pa. Page 393]

OPINION

Appellant James Morris pled guilty to offenses arising out of thirteen (13) separate criminal episodes amounting to forty (40) bills of indictment before a court en banc in November, 1970. The charges against appellant included murder, assault with intent to kill, aggravated assault and battery, assault and battery with intent to kill, conspiracy, burglary, aggravated robbery, indecent assault, and various weapons offenses. After the presentation of the testimony, appellant was adjudged guilty of murder of the first degree. Appellant received a sentence of life imprisonment on the murder indictment, and a total minimum sentence of forty-five (45) and one-half years imprisonment and a total maximum sentence of ninety-one (91) years imprisonment on nine (9) other indictments to follow consecutively the life sentence. Sentence was suspended on the remaining indictments. Appellant failed to file post-trial motions or take an appeal from these judgments of sentence.

In November, 1975, appellant filed a petition under the Post Conviction Hearing Act, 19 P.S. ยง 1180-1 et seq., alleging that his trial counsel was incompetent, that his guilty pleas were unlawfully induced, and assertions of denials of his rights against self-incrimination and various other state and federal constitutional guarantees.*fn1 Following an evidentiary hearing, the P.C.H.A. court denied appellant's claim of trial counsel's ineffectiveness but did find that appellant had been denied his appellate rights as defined by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1967).*fn2 Specifically, the court found:

[ 486 Pa. Page 394]

A reading of the transcript renders it abundantly clear that defendant's appellate rights were never fully explained to him. Inter alia, the defendant was not advised that he had the right to challenge the sufficiency of the evidence nor was he fully apprised of his right to appeal with free court-appointed counsel if he could not afford counsel.

The court then granted appellant leave to file a direct appeal nunc pro tunc to this Court from the judgments of sentence. An appeal nunc pro tunc was also taken on the non-homicide judgments to the Superior Court which was consolidated with the present action.

It is clear that the P.C.H.A. court precipitously placed this matter on the appellate level. In Commonwealth v. Bricker, 444 Pa. 476, 478, 282 A.2d 31 (1971), we settled this same question and stated:

We have decided in Commonwealth v. Robinson, 442 Pa. 512, 515 n. 2, 276 A.2d 537 (1971), and Commonwealth v. Harris, 443 Pa. 279, 278 A.2d 159 (1971), that when it is determined that a defendant has not been properly advised of his right of appeal from a judgment of first degree murder following a plea of guilty to murder generally, the proper practice is for the PCHA court to terminate the hearing and remand the case to the trial court to allow the petitioner to file posttrial motions. See ...


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