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COMMONWEALTH PENNSYLVANIA v. JOSEPH MARKLE (11/09/87)

filed: November 9, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT (AT 3251),
v.
JOSEPH MARKLE, APPELLANT (AT 3249 AND 3250)



Appeal from the Judgment of Sentence (at No. 3249) and the Order (at Nos. 3250-51) in the Court of Common Pleas of Philadelphia County, Criminal Trial Division at No. 81-09-1930-1931.

COUNSEL

David P. Trulli, Philadelphia, for appellant in Nos. 3249 and 3250 and appellee in No. 3251.

Alan Sachs, Assistant District Attorney, Philadelphia, for Com., appellant in No. 3251 and appellee in Nos. 3249 and 3250.

Cavanaugh, Rowley and Montemuro, JJ.

Author: Montemuro

[ 368 Pa. Super. Page 144]

This case comes before us on a consolidation of three appeals. The Commonwealth appeals from the Order of the Post-Conviction Hearing Act*fn1 ("PCHA") Court granting Joseph Markle (designated as appellee herein) the right to file a direct appeal nunc pro tunc. Appellee appeals nunc pro tunc from the trial court's judgment of concurrent sentences following a jury trial where appellee was found guilty of burglary*fn2 and conspiracy.*fn3 He also appeals from the PCHA Court's denial of his other grounds for PCHA relief. We affirm.

On June 25, 1981 a Philadelphia police officer, responding to a radio report of a burglary-in-progress at the All Saints Episcopal Church, observed appellee and another man running across the street approximately 50 yards from the church. The man accompanying appellee was carrying a weighted pillow case. The officer apprehended the men as they entered a vehicle parked in an apartment complex across the street from the church. The pillow case was

[ 368 Pa. Super. Page 145]

    discovered to contain various articles of church property. In addition, the police officer observed a large screwdriver and a pair of gloves on the back seat of the car. The two men were arrested and charged with burglary and conspiracy.

At trial, the court denied appellee's requested point for charge on "mere presence" and flight. The jury returned a guilty verdict on both the burglary and conspiracy charges. Timely post trial motions were filed and denied by the trial court and appellee was sentenced to consecutive terms of imprisonment of ten (10) to twenty (20) years for burglary and five (5) to ten (10) years for conspiracy. Upon appellee's motion for reconsideration, the court made the sentences concurrent. Appellee then filed an appeal with this court alleging that the evidence was insufficient to support a guilty verdict on the charges; that the court erred in failing to grant trial counsel's request for a continuance of the post-trial motions hearing, and that trial counsel was ineffective. We quashed appellee's appeal as untimely filed.*fn4 Appellee subsequently filed a PCHA petition, which as supplemented, alleged that trial counsel was ineffective for failing to file a timely appeal; for failing to contend that the trial court wrongly denied his point for charge on "mere presence" and flight, and for failing to demand an adequate instruction on accomplice liability. The PCHA court found that appellee had been denied his appellate rights because of trial counsel's failure to perfect a timely appeal and granted appellee leave to file a direct appeal nunc pro tunc to this court. In addition, the PCHA court went on to address appellee's allegations regarding the denial and sufficiency of the points for charge and found these claims meritless. The Commonwealth appealed from the portion of the PCHA court's order which determined that his additional PCHA claims were meritless. Moreover, appellee exercised his right to appeal nunc pro tunc from the trial court's judgment of sentence. The three appeals were

[ 368 Pa. Super. Page 146]

    consolidated and the Commonwealth was designated appellant.

The resolution of this case requires us to examine: (1) Whether the PCHA court properly granted appellee the right to file an appeal nunc pro tunc; and (2) if so, which of appellee's ...


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