No. 80-3-815 Appeal from Judgment of Sentence dated November 6, 1980 of The Court of Common Pleas, Criminal Section, Trial Division of Philadelphia, imposed on Bill of Information November Term, 1979 No. 91.
Barnaby C. Wittels, Philadelphia (Court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Michael Clarke, Asst. Dist. Atty., Philadelphia, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Flaherty, Justice, filed a concurring opinion.
Appellant was convicted on February 14, 1980 of the second degree murder*fn1 of his girlfriend which occurred on February 3, 1972. In this direct appeal, the Appellant asserts three errors; first, the admission by the trial court of evidence of his prior criminal conduct; second, the trial court's refusal to give a missing witness instruction; and, last, the ineffectiveness of his trial counsel.
Before reaching the merits of these contentions, however, we must address the Appellee's argument that Appellant's first two assertions of error had been waived. The record indicates that the issues of the Appellant's prior criminal
conduct and the court's refusal to give a missing witness instruction were waived.
Appellant erroneously relies on Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) as supporting his argument that because the lower court addressed the merits of these issues in its opinion, the issues were preserved for appeal. Reliance on Gravely is misplaced for several reasons. First, Gravely represented a final, definitive statement as to whether certain issues would be preserved for appellate review despite failure to comply with Rule of Criminal Procedure 1123(a). The essence of the rule announced in Gravely was that "only those issues included in post-verdict motions will be considered preserved for appellate review." 486 Pa. at 198-99, 404 A.2d at 1298. This rule was made prospective only, however, and cases wherein motions were filed prior to September 4, 1979 (60 days after the Gravely decision) were given the benefit of the "substantial compliance" rule which had developed in several previous cases. Appellant's motion here was filed February 20, 1980.
Second, and more important, the question addressed in Gravely was the reverse of the question presented here. In Gravely, we considered whether issues not stated in post-trial motions, but nevertheless briefed and considered by the court below, were preserved for appellate review. In this case, the issues were stated in the post-trial motion, but were not briefed or argued. (The court below ruled that these issues had for this reason been waived, but addressed their merits in anticipation of the appealability of the waiver issue itself). In Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978), we held that where issues raised in post-trial motions were not briefed or argued, these issues are waived. The holding in Williams is controlling in this case. We write at length to make explicit what should have been abundantly clear after ...