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submitted: March 23, 1984.


No. 1165 Pittsburgh 1982, Appeal from the P.C.H.A. order of the Court of Common Pleas of Fayette County, Criminal Division at No. 339 1/3 of 1976.


James N. Fitzsimmons, Jr., Uniontown, for appellant.

Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

Popovich, Hoffman and Lipez, JJ. Lipez, J., concurs in the result.

Author: Popovich

[ 331 Pa. Super. Page 464]

This is an appeal from the Order of the Court of Common Pleas of Fayette County denying appellant's, Emmett Cooper's, Post-Conviction Hearing Act (PCHA) petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We reverse.

At the outset, this Court would like to note that the direction this case has followed can be attributed, in part, to appellant's insistence that he be availed the opportunity to have his conviction reviewed, initially, within the context of the Post-Conviction Hearing Act vis-a-vis the post-verdict motion route. We believe this is linked to appellant not being specifically advised that his failure to file post-verdict motions would preclude him from raising "any grounds" that could have been contained therein on appeal, notwithstanding his filing of a PCHA petition as a substitute for post-verdict motions. Our rules of criminal procedure do not make allowances for such a procedural slight-of-hand. In other words, if the appellant were to comply with such a procedural irregularity, knowingly and intelligently, he might fall prey to the waiver doctrine. See Pa.R.Crim.P.

[ 331 Pa. Super. Page 4651123]

(c)(3). From what we have been able to garner from the record, which is discussed infra, appellant had no intention of waiving any issues that could be raised on appeal. See also note 2, infra.

Having stated the aforementioned, we will now turn to the facts: After a jury trial on June 9-10, 1976, the appellant was found guilty of criminal attempt to commit burglary. 18 Pa.C.S.A. § 901.*fn1 Following the rendition of the verdict, the trial court immediately advised the appellant that he had a right to file motions for a new trial and for an arrest of judgment within seven (7) days and to the right to have the public defender continue to aid him in this endeavor, free of charge. In particular, the appellant was advised that if the motions were filed and denied he "would have the right to appeal to a high court on the grounds appearing in those motions. If the motions [were] not filed or if they [were] withdrawn, the effect would be that the verdict w[ould] stand." (N.T. 6/9-10/76 at 70) Further, upon request to address the trial court, appellant wanted to know if he could "be furnished with the post conviction" so he could appeal the conviction on his own. The trial court responded that by filing a post conviction petition, the appellant would be "waiving" his right to file the motions just mentioned. Appellant acknowledged, following an off-the-record discussion with trial counsel, that he wanted to "go post conviction." (See N.T. 6/9-10/76 at 71-73)

Notwithstanding appellant's statement to the contrary, on June 14, 1976, trial counsel filed (boiler-plate) post-verdict motions questioning the sufficiency of the evidence. However, by letter dated June 10, 1976, appellant wrote:


I wish to have Attorney Ruane removed from my case & all proceedings that he files in my behalf, I wish to have dismissed, cause [sic] I do not desire to file motions

[ 331 Pa. Super. Page 466]

    for a new trial or arrest of judgment. I shall proceed by the post conviction act upon my own.

Thank you

/s/ Emmett Cooper

Witnessed 6-10-76

/s/ James L Smith

/s/ Dillard W Robinson Jr

(Record No. 7)

The aforementioned letter was stamped "JUN 15 1976" as the date upon which copies were sent to, e.g., the district attorney and the public defender.

By Order dated June 21, 1976, the trial judge dismissed without prejudice appellant's PCHA petition on the ground that, since he had not been sentenced, placed on probation or parole, it was untimely filed. See 42 Pa.C.S.A. § 9543(2). A copy was sent to the appellant, the district attorney and the public defender on the same day. Thereafter, handwritten petitions for PCHA relief were filed by the appellant, and stamped as received by the Clerk of Courts of Fayette County, on July 27 (claiming court error in dismissing the prior PCHA petition as untimely), August 4 (questioning the manner and sequence in which the petitioner was indicted and tried), August 10 (requesting that the court dismiss the post-verdict motions filed by the public defender) and August 24 of 1976 (arguing that trial counsel violated various canons of ethics and disciplinary rules in trying a case he was not prepared to litigate).

The preceding culminated in the entry of an Order, dated December 20, 1976, granting trial counsel's motion, filed "at the written request of the defendant, Emmett Cooper," for leave to withdraw the post-verdict motions he had filed on Cooper's behalf. Also, on the same date, a hearing was held on appellant's petition that his counsel's post-verdict motions be withdrawn. The court, to assure itself that such a request was knowingly and intelligently made, conducted a colloquy in which the following occurred:

THE COURT. . . . . Mr. Cooper, when you are convicted by a jury, you have a right within 7 ...

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