No. 2198 October Term, 1979, No. 248 Philadelphia, 1980, Appeal from the Order and Judgment of Sentence of the Court of Common Pleas, Criminal Division, Montgomery County, at No. 2615-78.
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cercone, President Judge, and Hester and Cavanaugh, JJ.
[ 296 Pa. Super. Page 316]
Appellant entered an open plea of guilty to the charges of robbery*fn1 and conspiracy to commit robbery*fn2 and was sentenced to five to fifteen years. A petition to reconsider the sentence was filed and denied. Appellant did not file a motion challenging the validity of the guilty plea pursuant to Rule 321 of the Pennsylvania Rules of Criminal Procedure nor was a direct appeal taken in the case. Subsequently, however, appellant filed a petition under the Post Conviction
[ 296 Pa. Super. Page 317]
Hearing Act (hereinafter PCHA) challenging his convictions. Within this petition, appellant faulted trial counsel for failing to file a suppression motion and for failing to take a direct appeal. Following an evidentiary hearing, the PCHA court determined that the claim asserting the denial of appellate rights was meritorious and granted appellant the right to file an appeal nunc pro tunc. The PCHA court also reviewed and denied the suppression issue raised in the petition. Thereafter, appellant filed a nunc pro tunc appeal from the Judgment of Sentence and a second appeal from the order of the PCHA court insofar as it had denied relief on the suppression issue. These two appeals were then consolidated by our Court for briefing and argument.
Procedurally, it was incorrect for appellant to take an appeal from the order of the PCHA court denying relief. As stated in Commonwealth v. Miranda, 296 Pa. Super. 441, 442 A.2d 1133:
[O]nce the PCHA court decides the accuracy of the deprivation of appellate rights claim and grants the nunc pro tunc appeal, its review of any remaining claims would not be considered final review of the issues, but would only be seen as serving the evidentiary purpose of completing the record. As such, the evidentiary review would not result in a separate appealable order. (emphasis supplied).
See also Commonwealth v. May, 296 Pa. Super. 435, 442 A.2d 1129. This appeal must, therefore, be quashed.*fn3
Second, we must reverse the order of the PCHA court granting the right to file an appeal nunc pro tunc. Instead, the case is to be remanded to the trial court to permit appellant to file a motion pursuant to Rule 321 of the Pennsylvania Rules of Criminal Procedure, challenging the validity of the guilty plea. ...