No. 1069 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Chester County, No. 008377, Criminal Action.
L. Jackson Thomas, II, West Chester, for appellant.
Janet L. Crawford, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Hester, Hoffman and Catania, JJ.*fn*
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Appellant contends that (1) he did not knowingly and voluntarily waive his right to appeal by withdrawing his post-verdict motions; (2) the sentence imposed on his conviction for theft is illegal because the theft conviction merged with his robbery conviction; and (3) the sentences imposed were excessive. We agree only with appellant's second allegation and, accordingly, vacate his sentence on the theft charge.
The charges against appellant arose from his participation in a bank robbery. Appellant was convicted by a jury of two counts of robbery, theft by unlawful taking, aggravated assault, two counts of simple assault, recklessly endangering another person, violation of the Pennsylvania Uniform Firearms Act, and criminal conspiracy. After the jury rendered its verdict the trial judge advised appellant of his right to file post-verdict motions, the time limit thereon, and the
[ 272 Pa. Super. Page 441]
consequences of failure to file such motions.*fn1 On May 9, 1977, appellant's appointed counsel filed timely motions for a new trial and in arrest of judgment. On September 19, 1977, however, the court granted appellant's petition for leave to withdraw his post-verdict motions. At that time the court conducted an on-the-record colloquy in which appellant was advised of the consequences of withdrawing his motions and stated that he had not been coerced into so doing. The trial judge then imposed sentences of imprisonment of 5 to 15 years on the first robbery count; 3 1/2 to 7 years on the theft count; 2 1/2 to 5 years on each of the counts charging aggravated assault, violation of the Uniform Firearms Act, and conspiracy; and 1 to 2 years on the recklessly endangering count.*fn2 All of the sentences were to be served concurrently. The trial judge, in making the sentencing decision, considered on-the-record the pre-sentence report on appellant, the nature of the crime and appellant's participation therein, and the guidelines of the sentencing code regarding total confinement. From the judgment of sentence, appellant took this appeal.
Appellant's first contention is that he did not knowingly and voluntarily waive his right to appeal by withdrawing his post-trial motions. "Our courts have repeatedly held that a defendant's failure to raise specific issues in post-verdict motions constitutes a forfeiture of his right to have these issues considered on direct appeal." Commonwealth v. Rinier, 255 Pa. Super. 166, 171-172, 386 A.2d 560, 563 (1978) (footnote and citations omitted). "The waiver of the right to appeal may be made by withdrawing of post-verdict motions." Commonwealth v. Taylor, 483 Pa. 60, 62, 394 A.2d 538, 539 (1978) (citation omitted). "However, for such a waiver to be effective, the record must affirmatively demonstrate that the appellant was aware of his right to file post-verdict motions and that he knowingly and intelligently
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decided not to do so." Commonwealth v. Schroth, 458 Pa. 233, 328 A.2d 168 (1974) (citations omitted).
The trial judge in the case at bar twice advised appellant of his right to file counseled post-verdict motions and of the consequences of failure to do so. Appellant concedes the adequacy of these instructions, but contends that the record does not demonstrate that he made his decision to waive intelligently and free from threats.*fn3 During the colloquy conducted on appellant's withdrawal of his post-trial motions, appellant stated, in answer to the judge's question, that no threats or promises led to his decision and that he understood that he was giving up the right to ...