No. 163 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1515 and 1516, November Term, 1974.
Mitchell Scott Strutin, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Johnson and Popovich, JJ.
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Appellant, Walter Williams, also known as Charles Walker, appeals from the lower court's denial of his request for
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relief under the Post Conviction Hearing Act.*fn1 On appeal, appellant contends inter alia that his counsel at trial was ineffective for stipulating to the testimony of the complaining witness and for failing to insure that an on-the-record colloquy was held by the trial court before the stipulation was accepted. We agree, and reverse the judgment of sentence and remand for a new trial.*fn2
Before addressing the merits of appellant's claim, we must examine the question of waiver. The facts which are necessary to a resolution of the waiver question are as follows:
On March 26, 1975, appellant was tried before a judge, sitting without a jury, and found guilty of theft by unlawful taking or disposition,*fn3 receiving stolen property,*fn4 and unauthorized use of an automobile.*fn5 Post-verdict motions were denied, and appellant was sentenced to concurrent terms of two and three years of non-reporting probation. During this stage of the proceedings, appellant was represented by the Public Defender's Office of Philadelphia County.
On May 7, 1976, appellant was arrested and charged with forgery,*fn6 and other related offenses.*fn7 He was found guilty of receiving stolen property and sentenced to a term of one year probation.
Again, appellant was arrested and charged with eight counts of forgery and theft by deception.*fn8 Appellant entered
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pleas of guilty to these charges and was sentenced to terms of one to two years imprisonment.
Because the two convictions referred to above constituted violations of appellant's probation, his probation was revoked, and appellant was sentenced to a consecutive term of imprisonment of not less than three nor more than seven years in prison. No sentence was imposed on the unauthorized operation conviction because it merged with the theft conviction. At the probation revocation proceedings, appellant was represented by private counsel. A direct appeal was filed pro se from the judgment of sentence imposed; however, the appeal was discontinued on the advice of counsel, a public defender from Philadelphia County.
To begin with, the merits of an issue cannot be addressed in a post-conviction proceeding where:
"(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 P.S. § 1180-4(b). (Supp.1981-82).
In this context, § 1180-4(c) provides that:
"[t]here is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."
We also have recognized that the
"knowing failure to appeal from [an] order of probation constitutes a waiver of the right to challenge the validity of the conviction upon which the probation order is based." Commonwealth v. Gilmore, 465 Pa. 202, 205, 348 A.2d 425, 427 (1975) (emphasis added). Accord, Commonwealth v. Nance, 290 Pa. Super. 312, 316, 434 A.2d 769, 771 (1981).
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Although the trial court stated that the issue appellant raised concerning the stipulation was meritorious, the court denied relief because "the defendant fail[ed] to take a direct appeal and has offered no evidence to rebute [sic] the presumption that his failure to raise the issue on appeal constituted a knowing and intelligent waiver of such right." Trial Court Opinion at 4. We must disagree with the trial court because:
"[w]hen a defendant fails on direct appeal to raise [the] ineffectiveness of trial counsel, the issue of ineffectiveness is not waived if his trial counsel was or would have been his appellate counsel." Commonwealth v. Davis, 267 Pa. Super. 118, 121, 406 A.2d 547, 548 (1979) (Emphasis added) (Citations ...