NO. 1865 PHILADELPHIA, 1981, Appeal from the judgment of sentence of July 2, 1981, in the Court of Common Pleas of Delaware County, Criminal Division, at No. 6748 of 1980.
Howard B. Zavodnick, Philadelphia, for appellant.
David E. Fritchey, Deputy District Attorney, Media, for Commonwealth, appellee.
Spaeth, Brosky and Beck, JJ.
[ 306 Pa. Super. Page 153]
Appellant, Alfred Carroll, was arrested on December 24, 1980 by Lansdowne police officers. Those officers had responded to a telephone call from an apartment building manager who saw appellant and another man separately charged driving into the parking lot; he recognized neither man. The manager noted that these men remained in the car for several minutes and then walked to the rear of the building. He went downstairs to see what they wanted and observed them standing in front of an apartment; one of them appeared to be jimmying the lock. He then called the police. Meanwhile the two men had gained entrance to Michael Anderson's apartment. A gun was placed at Anderson's head, and he was bound and gagged. The two men took cash and personal possessions from Anderson's apartment. Anderson testified that the two men heard the officers outside his doorway and fled through the kitchen window. The officers apprehended them nearby.
[ 306 Pa. Super. Page 154]
Appellant was convicted by a jury of robbery, burglary and conspiracy. No timely post-trial motions were filed. On June 5, 1981, a second attorney who is counsel on appeal petitioned the court to allow the filing of post-trial motions nunc pro tunc. The court denied that petition. Appellant was sentenced to two and one-half to five years incarceration for each offense; all sentences to run concurrently.
Appellant argues that the trial court abused its discretion in refusing to allow him to file post-trial motions nunc pro tunc. Preliminarily, we note that "[i]ssues not raised by posttrial motions are waived and therefore may not be raised on direct appeal . . . . For the waiver to be effective, however, the record must affirmatively demonstrate that the defendant was aware of his right to file post-trial motions and that he intelligently and voluntarily decided not to do so." Commonwealth v. Williams, 241 Pa. Super. 226, 228-229, 360 A.2d 735, 736 (1976) (citations omitted). The question, therefore, is whether appellant's waiver was voluntary and intelligent. In examining the waiver, we are guided by Pa.R.Crim.P. 1123(c) which states:
(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record:
(1) of the right to file post-verdict motions and of the right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein;
(2) of the time within which he must do so as set forth in paragraph (a); and
(3) that only the grounds contained in such motions may be ...