Com. v. Miller

• Decision Date: 24 November 1976
• Citation: 366 A.2d 220,469 Pa. 370
• Parties: COMMONWEALTH of Pennsylvania v. Henry B. MILLER, Appellant.
• Court: Pennsylvania Supreme Court

Page 220

366 A.2d 220

469 Pa. 370

COMMONWEALTH of Pennsylvania v. Henry B. MILLER, Appellant.

Supreme Court of Pennsylvania.

Argued May 6, 1976.

Decided Nov. 24, 1976.

[469 Pa. 371] John H. Chronister, York, for appellant.

Morrison B. Williams, Asst. Dist. Atty., D. L. Reihart, Dist. Atty., York, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

MANDERINO, Justice.

Appellant, Henry B. Miller, entered a plea of guilty to an indictment charging him with the May 4, 1973, murder of his mother, Mariella Miller. Following a degree of guilt hearing at which both the prosecution and appellant presented testimony, a court en banc set the degree of guilt at murder in the first degree. Appellant was sentenced to life imprisonment and this appeal followed.

Appellant's sole contention on this appeal is that the trial court erred in finding appellant guilty of murder in the first degree in view of the psychiatric testimony submitted at the degree of guilt hearing. We do not, however, reach the merits of the issue raised since no post-verdict motions were filed in the trial court, and the issue was never considered in that court. In Commonwealth v. Robinson, 442 Pa. 512, 515 n. 2, 276 A.2d 537, 539 (1971), we said:

'We have concluded that the preferable practice, since it may narrow the issues on appeal or perhaps obviate an appeal entirely, is to file post trial motions in any first degree case where error is asserted, whether the conviction follows a full trial or only a degree of guilt hearing held after a plea of guilty.'

In numerous cases we have enunciated and applied the rule that issues not raised in post-verdict motions are deemed waived and may not be raised on direct appeal. For example, See Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). This rule applies whether the appeal arises from a conviction following a full trial or only a degree of guilt hearing after a plea of guilty. See, Commonwealth v. Robinson, supra, 442 at 515 n. 2, 276 at 539 n. 2.

On June 8, 1973, this Court codified the aforementioned rules with respect to degree of guilt hearings in Rule 1123(e) of the Pennsylvania Rules of Criminal Procedure, 19 P.S.Appendix. Rule 1123(e) provides:

'The trial judge shall determine whether post-verdict motions shall be argued before himself alone or before a panel sitting as a court en banc. In cases in which a panel of three judges determines the degree of guilt pursuant to Rule 319A, All post-verdict motions shall be heard before the court en banc. Whenever the trial judge hears the motions alone, he may make any rulings that could be made by a court en banc.' (Emphasis added.)

In the case at bar, the degree of guilt hearing (June 13, 1974) and the finding of guilt by the court en banc (July 17, 1974) occurred after the effective date of Rule 1123 of the Pennsylvania Rules of Criminal Procedure. Thus, the issue that arises is whether the appellant has waived his right to appeal by failing to file post-verdict motions. A review of the record indicates that the appellant was not properly informed of the necessity of filing post-verdict motions before appealing to this Court...