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COMMONWEALTH PENNSYLVANIA v. BERNARD JERRY (09/30/83)

submitted: September 30, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD JERRY, APPELLANT



No. 1192 Pittsburgh 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC7608301.

COUNSEL

Michael James Healey, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Wickersham, Rowley and Popovich, JJ. Rowley, J., filed a concurring and dissenting statement.

Author: Popovich

[ 323 Pa. Super. Page 302]

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying Post Conviction Hearing Act (PCHA)*fn1 relief to appellant, Bernard Jerry.

On March 16, 1977, appellant was convicted by a judge, sitting without a jury, of possession of a controlled substance*fn2 and theft by receiving stolen property.*fn3 Appellant was sentenced to a term of imprisonment of not less than nine months nor more than eighteen months. No post-verdict motion was filed, and no direct appeal was taken. We must remand for proceedings not inconsistent with this opinion.

On September 2, 1977, appellant filed his first PCHA petition pro se. A hearing was held on June 1, 1978, and the court denied appellant's petition.

On November 29, 1978, appellant filed his second PCHA petition pro se. The court denied appellant's petition without a hearing. Appellant's third pro se PCHA petition was filed in May of 1981. This petition also was dismissed because "all issues raised therein have been previously disposed of by this Court." Order of Court dated June 23, 1981, at No. 4. There is no transcript of this evidentiary hearing; however, counsel for the appellant and the prosecution entered into a "STIPULATION OF FACTS" which

[ 323 Pa. Super. Page 303]

    stated that an evidentiary hearing was conducted on September 15, 1981. Appellant was permitted to amend his PCHA petition to include an allegation of the ineffective assistance of appellate counsel. The court concluded that appellant did not waive his right to appeal and entered an order allowing appellant the right to appeal nunc pro tunc from the order of court dated June 1, 1978. The court also appointed private counsel to represent appellant on appeal.

Appellant raises three issues: (1) whether the trial court erred in denying appellant's application to suppress illegally seized evidence because warrants were required; (2) whether the trial court erred in admitting into evidence a statement made by appellant as a result of police interrogation; and (3) whether the trial court erred in ruling that there was sufficient evidence to support appellant's conviction for theft by receiving stolen property.

The prosecution contends that the issues that appellant raises either have been finally litigated or waived because "appellant's failure to file post trial motions precludes consideration of those allegations of error raised in his first PCHA petition concerning the admission of certain evidence." Brief for the Prosecution at 7. We cannot agree with the prosecution's contention.

To begin with, the PCHA court determined that appellant's appellate rights were violated. Even the prosecution conceded as much in its "STIPULATION OF FACT" when it stated:

"Any waiver which resulted from the failure to file a timely Notice of Appeal was through no fault of the petitioner and, therefore, cannot be deemed to be knowing and voluntary. Petitioner at all times desired to pursue an appeal from the denial of post conviction relief and in fact believed that such an appeal had been perfected on his behalf." Record at No. 8, page 2.

Although the prosecution in its stipulation admitted that appellant's appellate rights were violated at the PCHA stage, this Court concludes that appellant's failure to file

[ 323 Pa. Super. Page 304]

    post-trial motions does not constitute a waiver because our examination of the record reveals that appellant was not advised properly of his post-trial rights. The Court stated the following:

"THE COURT: I am going to order a pre-sentence report and direct that the Defendant be returned pursuant to the detainer to Beaver County Jail.

You know you have seven days to file post-trial motions on this matter, Mr. Stockey?

MR. STOCKEY: I guess I have to.

THE COURT: I don't know whether you have to or not. You have to say on the record that you understand you have seven days.

MR. STOCKEY: Right." (Notes of Testimony, N.T., 3/17/77, at 77-78)

At the time of appellant's trial, March 17, 1977, appellant should have been informed of his "rights with respect to the filing of post-trial motions [e.g., the right to the assistance of counsel in the filing of the motion and on appeal of any issues raised therein], the time for filing and the waiver consequences of not filing as required by Rule 1123". Commonwealth v. Vasquez, 268 Pa. Super. 295, 298 n. 4, 408 A.2d 154, 156 n. 4 (1979).*fn4

Although appellant was advised of the time limit for filing post-trial motions, he was not advised of his right with respect to the filing of post-trial motions nor was he advised of the waiver consequences of not filing a motion in accordance with Pa.R.Crim.P. 1123. Thus, on this record we are unable to agree with the prosecution that "appellant's failure to file post trial motions precludes consideration of those allegations of error raised in his first PCHA

[ 323 Pa. Super. Page 305]

    petition concerning the admission of certain evidence." Brief for the Prosecution, supra at 7.

It is well-established that:

"'[When] the trial court [does] not comply with Rule 1123(c), petitioner's failure to file adequate post-verdict motions cannot be deemed a knowing and intelligent waiver of his right to appeal.' Commonwealth v. Cathey, 477 Pa. 446, 450, 384 A.2d 589, 591 (1978)." Commonwealth v. Rowe, 268 Pa. Super. 380, 383, 408 A.2d 516, 517 (1979).*fn5

In any event, the issue of whether appellant was deprived of his appellate rights either at the post-trial stage or at the PCHA stage is intertwined in the instant case because the PCHA court concluded that appellant's appellate rights were violated at the PCHA stage, and our examination of the record also establishes that appellant's appellate rights were violated at an additional stage, the post-trial stage.*fn6 This is significant because we ...


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