No. 538 January Term, 1977, No. 274 January Term, 1979, Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, as of Information Nos. 100-101 and 103-104 of May Term 1976.
Michael A. Seidman, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Thomas J. McGarrigle, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Larsen, J., concurred in the result. Roberts, J., filed a dissenting opinion. Manderino, J., did not participate in the decision of this case.
On April 5, 1976, appellant, Stanley Brown, was charged with murder and a number of other related offenses in the fatal shooting and robbery of Carmen Falanga, an insurance
agent, who was at the time in question collecting debits in the 2400 block of West Sergeant Street, Philadelphia. After a trial by jury he was convicted of possessing instruments of crime, robbery, criminal conspiracy and murder in the second degree, thereafter post-trial motions were denied and sentences were imposed. Appellant is now attempting to overturn the judgment of sentence on direct appeal, being represented by counsel other than the one who represented him below.
The first question we must consider is the scope of review that is to be given in this case. In this instance, trial counsel filed post-trial motions of the boiler plate variety, specifically setting forth only a challenge to the sufficiency of the evidence.*fn1 Of the four issues raised in this appeal, only two of them were briefed and passed upon by the post-verdict motions court. These issues related to the admissibility of the testimony concerning an earlier robbery appellant had allegedly participated in on the same day as the Falanga robbery-killing and alleged prosecutorial misconduct during the summation to the jury. The third issue which relates to the relevance of the testimony presented by Calvin Lesster was not raised in the post-verdict proceedings and not considered by the post-verdict motions court.*fn2
In Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) this Court stated "[h]enceforth, issues not presented in compliance with the rule [Pa.R.Crim.P. 1123(a)] will not be considered by our trial and appellate courts." In Blair we interpreted rule 1123(a) as requiring post-verdict complaints to be specifically set forth in the written motion as a
condition for consideration by the post-verdict court and appellate tribunals. Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978). In Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), we ruled that sixty days after the filing of that opinion (July 6, 1979) "only those issues included in post-verdict motions will be considered preserved for appellate review." Id., 486 Pa. at 198, 404 A.2d at 1298. This mandate was extended to apply to any post-trial motions filed at the time of the Gravely decision "but which may still be supplemented after sixty days from this date." Id., 486 Pa. at 199, 404 A.2d at 1298. Since the post-verdict motions were denied and the judgment of sentence was imposed prior to our decision in Gravely, we will treat the two issues which were briefed and passed upon by the post-verdict motions court as preserved for review. See Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978); Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977).
As to the third issue which was not raised at any point during the post-verdict motion stage, appellant argues that the Blair bar should not be applied where the trial court failed to comply with section (c)(3) of rule 1123. Rule 1123(c)(3) provides:
Upon the finding of guilt, the trial judge shall advise the defendant on the record:
that only the grounds contained in such motions may be raised on appeal.
The Commonwealth does not contest the trial court's failure to instruct appellant on the record in accordance with section (c)(3) of the rule and our review of the colloquy at the time of the entry of the verdict confirms this omission. The trial court did instruct appellant that further review was dependent upon the filing of post-verdict motions within seven days, but made no mention of the fact that the
grounds contained in those post-verdict motions determined the scope of that review.
In Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978), explained the significance of section (c)(3) of rule 1123 as follows:
The right to appeal is a personal right which a defendant may relinquish only through a knowing, intelligent and voluntary waiver. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 107, 233 A.2d 220, 221-222 (1967); ABA Project on Standards Relating to Criminal Appeals § 2.2(b) (Approved Draft, 1970). To assure that any waiver of this right is knowing and intelligent, this Court has promulgated Pa.R.Crim.P. 1123(c) and 1405(b) [-- now 1405(c) --] which ensure that 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 raised first in post-verdict motions.
Id., 477 Pa. at 449-50, 384 A.2d at 590.
This same reasoning was followed by the Court in Commonwealth v. Marrero, 478 Pa. 97, 101, 385 A.2d 1331, 1333-34 (1978), wherein we stated:
However, we need not predicate our holding today on a determination as to whether or not the Grace [ Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977)] rationale is here applicable. As the appellant properly noted, Rule 1123(c)(3) requires that following the verdict of the jury the trial judge has the obligation to advise the defendant on the record that only the grounds contained in the written post-trial motions may be raised on appeal. Appellant argues that the failure of the trial court to comply with Rule 1123(c)(3) should in itself preclude a finding by the court en banc that counsel's failure to properly prepare post-trial motions constitutes a waiver of issues. We find this argument to be persuasive. Since the record fails to reflect the admonition required by Rule 1123(c)(3) upon the receipt of the verdict, we hold that appellant's
failure to file adequate post-trial motions will not be deemed a knowing and intelligent waiver of his right of appeal. (Footnote and citations omitted).*fn3
In view of the foregoing, we will consider the merits of each of the first three complaints raised herein by appellant.
Appellant's assignments of error can best be understood after brief summary of the testimony offered in this case. On April 2, 1976, appellant, Stanley Brown, and his accomplice, Harvey Tabron, agreed to obtain money by robbing an insurance agent working in the neighborhood. Appellant armed himself with a manriki (a two and one half foot chain used as a weapon in the martial arts) and Tabron was armed with a .22 caliber handgun. At approximately 12 noon, John Gallen, an employee of the Department of Housing and Urban Development, was inspecting houses in the 2800 block of Bonsall Street in the City of Philadelphia. Laboring under the mistaken belief that Mr. Gallen was an insurance agent, appellant and Tabron approached him and demanded money. They took from him a camera, two boxes of film, pictures, $16.00 in currency and a wristwatch. They then proceeded to West Sergeant Street.
At approximately 1 p. m. on the same day, the decedent, Carmen Falanga, an insurance agent, was collecting debits in the 2400 block of West Sergeant Street. As Mr. Falanga was entering his automobile, appellant grabbed him by the neck with the manriki and pushed him towards Tabron who had a gun drawn. The decedent began to struggle with appellant and drew a gun. The victim fired a shot at Tabron whereupon Tabron returned the fire, striking and killing the decedent.
Appellant complains that the testimony relating to the robbery of John Gallen was improperly introduced at his trial. He argues that this testimony was not only irrelevant but also highly prejudicial.
"'It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant's prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that the purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit the crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence' . . . ."
Commonwealth v. Spruill, 480 Pa. 601, 606, 391 A.2d 1048, 1049-50 (1978) quoting Commonwealth v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975). See also ...