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submitted: February 13, 1989.


Appeal from the Post Conviction Relief Act, August 23, 1988, in the Court of Common Pleas of Westmoreland County, Criminal Division, No. 881 C 1986.


William J. McCabe, Greensburg, for appellant.

John W. Peck, II, Assistant District Attorney, Arnold, for Com.

Rowley, McEwen and Montgomery, JJ. McEwen, J., concurs in the result.

Author: Rowley

[ 385 Pa. Super. Page 441]

This submitted case is an appeal from an order of the trial court denying appellant's second collateral petition for relief from his conviction for rape. The petition was erroneously filed pursuant to the Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-9551 (hereinafter "PCHA"), which was modified in part, repealed in part, and renamed the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq., eff. April 13, 1988, by Act of April 13, 1988, No. 47, §§ 3-4, 1988 Pa.Legis.Srv. 229-232 (hereinafter "PCRA"). The relief sought by appellant is a nunc pro tunc direct appeal to this Court. Appellant raises one issue for our review: whether trial counsel was ineffective for failing to file a direct appeal to the Superior Court from appellant's judgment of sentence?

A brief review of the procedural history of this case is necessary. Appellant was found guilty by a jury of Rape and Terroristic Threats. Post-trial motions were filed and denied. Appellant was sentenced on June 24, 1987. No appeal was taken from the judgment of sentence.

Appellant, on March 29, 1988, filed a pro se petition for relief under the PCHA in which he belatedly sought modification of his sentence. The trial court, without appointing counsel or holding a hearing, denied the petition on April 4, 1988. Appellant filed a second collateral petition May 24, 1988, which, although designated as being pursuant to the PCHA, should have been a petition under the PCRA,*fn1 which went into effect on April 13, 1988. In this second petition appellant alleged ineffective assistance of his trial counsel. Upon review of the petition the trial court appointed new counsel to represent appellant, and a PCRA hearing was scheduled for August 23, 1988. At the hearing, PCRA counsel stated for the record, "[a]ll we are asking for in this case is an Order where you will allow us to file an appeal to

[ 385 Pa. Super. Page 442]

    the Superior Court nunc pro tunc." N.T. 8/23/88 at 3. At the close of the PCRA hearing the court noted: "I find [counsel] negligent for [not] taking an appeal her client wanted to take." Id. at 21.

The next day, August 24, 1988, the PCRA court filed an opinion in which it found as a fact that the Assistant Public Defender who had represented appellant at trial failed to file a timely appeal due to a clerical error or miscommunication in her office. The PCRA court, however, went on to determine that there were no underlying issues of merit to appellant's claimed trial errors, and hence found there to have been no ineffectiveness on the part of defense counsel in failing to take the direct appeal. As a result, the trial court denied appellant's request for a direct appeal, nunc pro tunc. This appeal followed.

The trial court found that appellant's trial counsel had been at fault for failing to file a direct appeal on appellant's behalf. The record supports that finding. The trial court concluded, however, that the issues which appellant would have argued on direct appeal, though preserved for appellate review both at trial and post trial, had no merit and denied appellant's request to be allowed to take a direct appeal to this Court, nunc pro tunc. In reaching that conclusion, the trial court departed from the holding of our Court in Commonwealth v. Miranda, 296 Pa. Super. 441, 442 A.2d 1133 (1982).

In Miranda, we held that where a PCHA petitioner has alleged the ineffectiveness of his or her trial counsel for failing to take a direct appeal, the PCHA court is precluded from reaching the merits of other issues raised in the PCHA petition once the trial court determines that petitioner has been deprived of his direct appeal right and grants an appeal nunc pro tunc. Id., 296 Pa. Superior Ct. at 451, 442 A.2d at 1138.

Although Miranda was decided under the PCHA, we hold that it is to be applied with equal force to proceedings under the PCRA. It is apparent from the record that

[ 385 Pa. Super. Page 443]

    appellant was denied his right to appeal. The terms of the PCRA indicate that application of our decision in Miranda is called for in this situation. Section 9542 states in relevant part: "This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence . . . ." (emphasis added). For these reasons, in the case at bar, the PCRA court erred in addressing the merits of the substantive issues which appellant claims should have been raised on appeal. Once the court concluded that appellant was denied his right of direct appeal the proper course would have been to grant appellant leave to file a direct appeal nunc pro tunc. Commonwealth v. Ciotto, 382 Pa. Super. 458, 555 A.2d 930 (1989) (when a defendant establishes that counsel's ineffective assistance denied him entirely his right to a direct appeal, he is entitled to a direct appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he seeks to raise on direct appeal).

Nor is appellant's right to file a direct appeal barred by the decision of the Supreme Court of Pennsylvania in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). In Commonwealth v. Lawson, our Supreme Court determined, in the context of the PCHA, that "[a] repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate." Id., 519 Pa. at 513-514, 549 A.2d at 112. Our Court has applied Lawson with equal force to proceedings under the PCRA. Commonwealth v. Blackwell, Pa. Commw. , 555 A.2d 279 (1989). Moreover, the Comment to new Pa.R.Crim.P. 1507 states that "[a] second or subsequent motion should be summarily ...

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