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COMMONWEALTH PENNSYLVANIA v. ROBERT HARPER (11/13/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 13, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ROBERT HARPER, APPELLANT

No. 1828 October Term, 1979, Appeal from the Order of Court dated August 6, 1979 of the Court of Common Pleas, Criminal Division, Delaware County, Pennsylvania at Nos. 5768, 5769, and 7201 of 1977

COUNSEL

Brian S. Quinn, Havertown, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Brosky, Johnson and Popovich, JJ. Johnson, J., concurs in the result of this opinion.

Author: Popovich

[ 292 Pa. Super. Page 195]

This is an appeal from an order of the Court of Common Pleas, Delaware County, denying relief on a counseled Post Conviction Hearing Act*fn1 (PCHA) petition filed by appellant, Robert Harper.

On April 14, 1978, after trial before a jury, appellant was convicted of several counts of forgery, attempted forgery, and receiving stolen property. At trial, appellant was represented by a member of the public defender's office (first counsel). No post-verdict motions were filed,*fn2 and, following a hearing on appellant's petition to file post-verdict motions nunc pro tunc, the petition was denied. New, private counsel (second counsel), aided appellant both in the preparation of the petition and at the hearing. At sentencing, appellant, again represented by another private attorney (third counsel/post-trial counsel), was sentenced to serve a term of imprisonment of six to twelve years. No direct appeal was taken.

[ 292 Pa. Super. Page 196]

On February 8, 1979, appellant filed a pro se PCHA petition. An amended petition was filed by new, private counsel (fourth counsel) on May 24, 1979.*fn3 A hearing was held and the petition was denied on August 6, 1979. This appeal followed. On appeal, appellant is represented by fifth counsel, who is a private attorney.

Instantly, appellant argues that: (1) trial counsel was ineffective for failing to object to the admission of evidence that had been ordered suppressed; and for abandoning him at the post-verdict motions stage; (2) the lower court erred in denying appellant's petition to file post-verdict motions nunc pro tunc thereby denying his right to appeal; and (3) appellant was denied the right to be provided with free transcripts.

For the following reasons, we affirm the order of the lower court.

It is well settled that a criminal defendant who deliberately and knowingly chooses to bypass orderly state procedures afforded for challenging his conviction is bound by the consequences of that decision. Commonwealth v. Myers, 427 Pa. 104, 233 A.2d 220 (1967); Commonwealth v. Mika, 277 Pa. Super. 339, 419 A.2d 1172 (1980). In Pennsylvania, our Post Conviction Hearing Act precludes one from

[ 292 Pa. Super. Page 197]

    obtaining collateral relief where the issues raised either have been waived or finally litigated. Commonwealth v. Jumper, 494 Pa. 451, 431 A.2d 941 (1981). An issue is waived when:

(1) the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and

(2) the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. 19 Pa.C.S.A. § 1180-4(b) (Supp. Pamphlet 1965-1980).

Moreover,

There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure. Id. § 1180-4(c) (emphasis added).

Instantly, appellant failed to take a direct appeal from the judgment of sentence. Hence, his failure to appeal constitutes a waiver*fn4 since the issues appellant raises before us were cognizable at that stage.*fn5 See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Lochman, 265 Pa. Super. 429, 402 A.2d 513 (1979).

[ 292 Pa. Super. Page 198]

In certain situations, the ineffectiveness of counsel has been held to be an "extraordinary circumstance" excusing one's failure to raise the claim at the first opportunity. Commonwealth v. Klaric, 263 Pa. Super. 286, 397 A.2d 1212 (1979). Here, however, this court is not confronted with such an issue because trial counsel's ineffectiveness could have been raised by a different attorney, post-trial counsel, on direct appeal. See Commonwealth v. Lochman, 265 Pa. Super. 429, 434, 402 A.2d 513, 516 (1979). Moreover, we have said that:

[w]here an appellant is represented by different post-trial counsel, and said appellant either fails to take a direct appeal or fails to raise his claims of trial counsel's ineffectiveness on direct appeal, such a failure will constitute a waiver of these issues as to post-conviction proceedings, excepting only those claims which fit under one or more of the four categories listed in Dancer.*fn* Commonwealth v. Glasco, 241 Pa. Super. 484, 497, 362 A.2d 420, 427 (1976).

Appellant does attempt to set forth in his brief and extraordinary circumstance excusing his failure to file an appeal. He frames the issue as follows:

"[i]t cannot be assumed that the failure of counsel to preserve issues for appeal or to file post verdict motions in this case constituted a 'knowing and intelligent' waiver of Appellant's right to appeal." (Supplemental Brief for Appellant In Forma Pauperis at 8).

[ 292 Pa. Super. Page 199]

Again, however, appellant's claim is waived because "the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represente[d] the [appellant]" was at the post-trial stage. As a result,

"[i]t follows then that when newly appointed post-trial counsel fails to assign the ineffectiveness of trial counsel as a ground for post-trial relief, the issue of trial counsel's ineffectiveness is not properly preserved for appellate review." Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977).

Thus, in the case before us, there does not exist any other "extraordinary circumstances" which could have justified his failure to raise the issue of trial counsel's competency. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Klaric, supra. Accordingly, appellant is not entitled to relief.

While the claims in question have been waived, we nevertheless have examined, in the interests of judicial economy, appellant's contentions and find them utterly devoid of merit.

First, appellant inartfully argues that trial counsel was ineffective for failing to object to the witness's reference when he described the perpetrator of the crimes as a male. According to appellant, this reference "had the effect of identification . . . of [appellant] as the person who committed the alleged crimes" and therefore was an impermissible reference to the identification testimony which had been ordered suppressed. (Supplemental Brief for Appellant In Forma Pauperis at 7). This contention is totally unfounded.

The trial transcript directly contradicts appellant's allegation. Trial counsel did object to the prosecution witness's reference to the perpetrator of the crimes as male. When the objection was overruled, trial counsel requested and obtained a side-bar where he again objected to any characterization that the alleged forgerer was "male, female, or in any other way." (N.T. 4/12/78, pp. 50-51).

[ 292 Pa. Super. Page 200]

Second, appellant contends that trial counsel was ineffective for failing to file post-verdict motions because counsel had not "notified his client, [obtained] leave from the Court, or compl[ied] with the 'constitutionally mandated procedure for withdrawal.'" (Supplemental Brief for Appellant In Forma Pauperis at 7-8, citing Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974)). This contention is ludicrous. The trial court determined and the record reveals that appellant "was afforded counsel for the purpose of assisting him in the filing of post-trial motions and he chose to refuse to cooperate with counsel." (Memorandum Opinion and Order on Petition to File Post-Verdict Motions Nunc Pro Tunc at 3, Record No. 18) (emphasis added). We now will not permit appellant to attack the stewardship of counsel when appellant "refuse[d] to cooperate" with counsel and so stated on the record that he did not intend to use counsel on appeal. (N.T. 4/14/78, p. 195).

Third, appellant argues that the lower court erred in dismissing his petition to file post-verdict motions nunc pro tunc. He contends that because he "[did] not 'knowingly and intelligently' waive his post-verdict and appellate rights, [the motions] must be heard nunc pro tunc if necessary." Supplemental Brief for Appellant In Forma Pauperis at 9). We disagree. While it is well-settled that an accused has an absolute right to appeal, Pa.Const.Art. V, § 9, and that issues not included in post-verdict motions are waived, Pa.R.Crim.P. 1123(b), it is equally settled that a defendant may waive his right to file post-verdict motions, Commonwealth v. Olsen, 247 Pa. Super. 513, 372 A.2d 1207 (1977). The record clearly indicates that appellant was fully apprised of his right to file post-verdict motions, his right to counsel, and of the need to strictly comply with the requirements of Pa.R.Crim.P. 1123. Nevertheless, appellant chose to take matters under his own advisement by filing a pro se PCHA petition, which was dismissed as being premature.*fn6 Appellant

[ 292 Pa. Super. Page 201]

    now would have us find that he was entitled, as a matter of right, to file post-verdict motions nunc pro tunc. This we will not do. The record establishes that the trial court complied with Rule 1123. Therefore, a "deliberate waiver of the right to file post-verdict motions is deemed to have been made." Commonwealth v. Ramsey, 259 Pa. Super. 240, 252, 393 A.2d 806, 813 (1978). Moreover, the transcript of the hearing on appellant's petition to file post-verdict motions nunc pro tunc amply supports the hearing court's conclusion "[that] the arguments raised by [appellant] as a basis for motions for a new trial . . . are patently without merit." (Memorandum Opinion and Order on Petition to File Post Verdict Motions Nunc Pro Tunc at 3, Record No. 18). The lower court, therefore, did not err in denying appellant's petition.

Finally, appellant contends that he was denied his right to be provided with free transcripts, thereby precluding him from effectively challenging the judgment of sentence. Although we agree that an indigent defendant does have a right to be provided with free transcripts, Commonwealth v. Homsher, 264 Pa. Super. 271, 399 A.2d 772 (1979), appellant's failure to obtain a transcript does not entitle him to relief in the instant appeal. First, appellant knowingly and voluntarily waived his rights to direct appeal. Second, we note that appellant did not request the documents nor present this issue before the post conviction hearing court. Appellant, therefore, may be deemed to have waived his right to be provided with free transcripts and his right to raise this issue in the instant appeal. See e. g. Commonwealth v. Mitchell, 474 Pa. 274, 383 A.2d 930 (1978).

The order of the PCHA court dismissing appellant's petition is affirmed.


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