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COMMONWEALTH PENNSYLVANIA v. ANTHONY P. ANDREWS (05/26/87)

submitted: May 26, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY P. ANDREWS, APPELLANT (TWO CASES)



Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 1033-1039 October Term 1980. Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 1033-1039 October Term 1980.

COUNSEL

Regina B. Guerin, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Rowley and McEwen, JJ.

Author: Cirillo

[ 367 Pa. Super. Page 2]

On November 19, 1986, the Honorable Edward J. Blake, sitting as judge on a post-conviction hearing for appellant, Anthony Andrews, issued an order granting an appeal nunc pro tunc and denying appellant's petition for relief under the Post Conviction Hearing Act. Andrews now appeals that order. Since appellant's trial counsel never filed either post-trial motions or an appeal, we concur with Judge Blake's conclusion that appellant has been denied his appellate rights. We find, however, that the grant of a nunc pro tunc appeal without the grant of a right to file nunc pro tunc post-trial motions is an inadequate remedy in this case. We therefore remand this case for the filing of nunc pro tunc post-trial motions.

The PCHA appeal alleges that trial counsel was ineffective for failing to: (1) preserve defendant's right to appeal to the superior court; (2) object to hearsay and prejudicial remarks in a "police interrogation"; (3) challenge the probable cause for arrest; (4) call a defense witness that was crucial to appellant's case; (5) adequately prepare for the suppression hearing; (6) request a Bighum hearing; (7) object to certain prosecutorial remarks and prejudicial statements; and (8) request a reconsideration of sentence. Because of our disposition of this case, we find that we need

[ 367 Pa. Super. Page 3]

    not deal with the second through the eighth issues on the merits.

The facts in this case reveal that, on September 8, 1980, two men committed an armed robbery of a restaurant in Philadelphia. The waitress, who had been held at gunpoint, initially identified appellant's brother at a photo array. Detective McCloskey, following up on the identification, received information that the appellant was one of the participants in the robbery. Appellant was questioned, confessed, and was subsequently arrested.

On March 11, 12, and 13, 1981, appellant was tried before the Honorable Alfred J. DiBona, Jr. A jury found him guilty of criminal conspiracy, simple assault, possessing an instrument of crime generally, and robbery. After dismissing the jury, the judge explained the procedure for preserving appellate rights and advised appellant that he had ten days to file post-trial motions.

The docket lists the filing of post-trial motions on March 19, 1981. The document filed on March 19, 1981, states as follows: "Counsel requests the right to make allegations in support of post verdict relief after reviewing the trial transcript." At the sentencing hearing, defense counsel stated, "there is nothing I can allege in support of any post verdict relief here . . . and I at this point after further review can make no allegations of error which can be arguable." The court, characterizing this statement as a post trial motion, replied "post trial motions are hereby denied." The judge then proceeded to sentence appellant. At the conclusion of the sentencing, the appellant stated, "I would like to have my lawyer put in that appeal for me." Judge DiBona responded, "Mr. Stewart, your client has requested that you file an appeal on his behalf. Accordingly, I would ask that you refer that to your appeals division." The appeal was never filed.

On June 1, 1982, appellant filed a petition under the Post Conviction Hearing Act claiming ineffective assistance of counsel. After a ...


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