Com. v. Martin

• Decision Date: 27 September 1985
• Citation: 346 Pa.Super. 129,499 A.2d 344
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. David Roy MARTIN, Appellant. 00441 HARRISBURG 1984
• Court: Pennsylvania Superior Court

Page 344

499 A.2d 344

346 Pa.Super. 129

COMMONWEALTH of Pennsylvania, Appellee, v. David Roy MARTIN, Appellant.

00441 HARRISBURG 1984

Superior Court of Pennsylvania.

Submitted June 21, 1985.

Filed Sept. 27, 1985.

Marilyn C. Zilli, Asst. Public Defender, Harrisburg, for appellant.

Robert B. MacIntyre, Deputy Dist. Atty., Harrisburg, for Commonwealth, appellee.

Before CAVANAUGH, CERCONE and LIPEZ, JJ.

CAVANAUGH, Judge:

David Roy Martin was found guilty by a jury of driving under the influence of alcohol and by a judge of driving while his operating privileges were suspended. He was sentenced to 30 days imprisonment and a fine of $300.00 on the first offense, and a consecutive term of 90 days imprisonment and a $1,000.00 fine on the latter offense. He now appeals from those convictions. ¹

Appellant was arrested on June 8, 1983 after his vehicle was observed traveling eastbound in the westbound lane of the Pennsylvania Turnpike by a Pennsylvania State policeman. He was charged with the above offenses. Trial was originally scheduled for November 14, 1983, but on that day appellant's public defender moved to withdraw from the case. The court granted that motion and continued the matter to December 13, 1983, the appellant's run date for purposes of Rule 1100. On December 13, the case was again continued until January 16, 1984.

On January 16, 1984, appellant filed a counseled waiver of his right to a speedy trial specifically waiving the computation of time under Rule 1100 for the period between January 16, 1984 and the March, 1984 term of the Dauphin County Criminal Court.

Trial commenced on February 10, 1984, before a judge and a jury on the driving under the influence charge, and before the same judge without a jury on the driving while suspended charge. On February 13, the jury was charged and sent out to deliberate. In the interim, further testimony was heard on the driving while suspended offense before the judge alone. The appellant was found guilty by the judge on this count and immediately sentenced to ninety days imprisonment, plus a $1,000.00 fine. The court then "defer[red] the effectiveness of the sentence" for ten days or until February 23. N.T. at 51 (February 13, 1984). ² Subsequently, the jury returned a verdict of guilty on the DUI charge.

Appellant then retained new counsel to pursue his post-verdict motions. These motions and supplemental post-verdict motions were filed ³ and later denied by the trial court without a hearing.

A second sentencing hearing was then held on July 24, 1984. At that proceeding the court sentenced the appellant to pay a fine of $300.00 plus the costs of prosecution and to undergo imprisonment for a period of not less than thirty days, nor more than six months. The court then continued:

[W]e will reaffirm our sentence in connection with driving under suspension filed to 1727(b) CD 1983.

And now, July 24, 1984, the sentence of the Court is the defendant pay a fine of $1000, the cost of prosecution, that he undergo imprisonment in the Dauphin County Prison for a period of 90 days, to begin and be computed at the expiration of the sentence imposed at 1727 CD 1983 [driving under the influence of alcohol].

N.T. at 4-5 (July 24, 1984). ⁴

Appellant was thereafter re-appointed counsel from the Public Defender's Office. On July 31, 1984, appellant filed a motion for modification of sentence as to each conviction. This motion was denied and, on August 7, 1984, appellant filed his appeal from the judgments of sentence entered on July 24, 1984.

Pursuant to the rules of appellate procedure, "the notice of appeal ... shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). In appeals from criminal convictions, therefore, the time for the filing of the notice is within thirty days of sentence. See Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984). Appellant was sentenced on the driving under suspension charge on February 13, 1984, although the court delayed the effectiveness of that sentencing order until February 23, 1984. Under our rules of appellant procedure, appellant therefore should have filed his notice of appeal from that judgment of sentence within thirty days of February 23, 1984. Because appellant did not file his notice of appeal until August 7, 1984, the present appeal as to 1727(b) CD 1983, driving under suspension, is untimely.

Nevertheless, we will consider appellant's arguments. "To constitute an effective waiver [of appellate rights], it must appear that there was an 'intentional relinquishment or abandonment of a known right.' " Commonwealth v. Collins, 295 Pa.Super. 380, 383, 441 A.2d 1283, 1284 (1982) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); U.S. ex rel. Boyd v. Rundle, 308 F.Supp. 184, aff'd. 437 F.2d 405 (3rd Cir.1970); Commonwealth v. Mack, 451 Pa. 319, 304 A.2d 93 (1973); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968); Commonwealth v. Ross, 289 Pa.Super. 104, 432 A.2d 1073 (1981); Commonwealth v. Henderson, 231 Pa.Super. 190, 331 A.2d 824 (1974)). See also Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984) ("constitutional right to appellate review is a personal right which may be relinquished only through a knowing, voluntary and intelligent waiver"). Following sentencing on February 13, and after the jury returned its verdict on the DUI charge, the trial court informed the appellant of his right to file post-verdict motions and also advised him, "[i]f you filed no post-trial motions of any kind and you were then sentenced by the Court, you would have thirty days from that date to take an appeal from the imposition of the sentence...." N.T. at 55 (February 13 1984). We cannot conclude from this that appellant was adequately informed of the necessity of filing a notice of appeal within thirty days of the effective date of sentence, February 23, 1984, especially in view of the procedural complexity which accompanied concurrent jury and non-jury trials. ⁵ Consequently, we cannot conclude that appellant waived his right to appeal in a knowing, voluntary and intelligent fashion. We will not quash the appeal.

Appellant first contests the sufficiency of the evidence on each of his convictions, i.e. misdemeanor, driving under the influence; and summary offense, driving while license suspended. Appellant attempted to raise these arguments below with the following post-verdict motion:

15. The evidence as to each count was not sufficient as a matter of law to sustain the verdict.

Appellant's Motion in Arrest of Judgment. Appellant did not endeavor to supplement this boiler-plate allegation through his amended post-verdict motions. This court has definitively admonished such motion practice. We have expressly opined:

A boiler plate motion, either that "the evidence was insufficient to support the verdict," or that "the verdict was against the weight of the evidence," is not a "precise statement of issues and grounds relied upon." Such assignments of error not only do not "foster" but discourage "alert and zealous advocacy," for anyone may make them without giving thought to what the issues really are. While "reflective and reasoned judgments by the court" may not be impeded, they will at least not be fostered, by boiler plate. As the Court stated in [Commonwealth v.] Waters [477 Pa. 430, 384 A.2d 234]:

In sum, the insistence upon the requirement of specific written post-verdict motions in accordance with Rule 1123(a) enhances the quality of review; encourages professional advocacy; discourages pursuit of frivolous claims; and promotes judicial economy.

Id., 477 Pa. at 435, 384 A.2d at 237 (footnote omitted).

[10, 11] We are persuaded by Waters to two conclusions: First, if counsel believes that the evidence was insufficient to support the verdict, the post-verdict motion should specify in what respect that was so.

Commonwealth v. Holmes, 315 Pa.Super. 256, 266, 461 A.2d 1268, 1273 (1983). The court then concluded that such boilerplate motions will not preserve any issue for appellate review. Accordingly, we find waived appellant's contention that the evidence was insufficient to sustain the verdicts.

Appellant's second argument is that trial counsel was ineffective for failing to object to the court's charge to the jury. Specifically he asserts that trial counsel should have objected to the trial judge's failure to instruct the jury that the Commonwealth has a burden to prove each element of the crime beyond a reasonable doubt.

Appellant correctly cites Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977), for the proposition that "[t]he defense had an absolute right to have the jury instructed not only as to the quantum of proof required to establish guilt but also that the requirement extended to each of the material elements of the offense." Id. at 490, 372 A.2d at 796. As the court in Bishop also stated, however, "In determining the adequacy of the instructions to the jury on the relevant legal principles the charge must be read as a whole." Id. (citing Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973); Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970)). Reviewing the charge given in the present case, we conclude that it was adequate to guide the jury's deliberations. The court properly defined the Commonwealth's burden as proving guilt beyond a reasonable doubt and, although perhaps in not the optimal manner, did in fact charge that "the Commonwealth has the burden of proving each and every element of a criminal act ...." We therefore disagree with appellant that his trial counsel should have objected to the jury charge; counsel will not be deemed ineffective.

Thirdly, appellant alleges that his trial counsel was ineffective for failing to raise the issue of appellant's right to...