Commonwealth v. Miller

• Decision Date: 27 February 1975
• Citation: 335 A.2d 528,232 Pa.Super. 171
• Parties: COMMONWEALTH of Pennsylvania v. Richard MILLER, Appellant.
• Court: Pennsylvania Superior Court

335 A.2d 528

232 Pa.Super. 171

COMMONWEALTH of Pennsylvania v. Richard MILLER, Appellant.

Superior Court of Pennsylvania.

February 27, 1975.

Vincent J. Ziccardi, Defender, John W. Packel Chief, Appeals Div., Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Judge:

The appellant was found guilty by a jury of forcible rape, burglary aggravated robbery, assault and battery, aggravated assault and battery, and assault and battery with intent to murder. Both at pre-trial motions and at trial the appellant refused the services of the voluntary defender and demanded that the court appoint private counsel. The court denied appellant's request and after warning the appellant of the seriousness of his refusal of the services of the voluntary defender proceeded with the trial. During the trial the appellant neither cross-examined the Commonwealth's witnesses nor offered any defense. After the verdict was returned the appellant stated that he wanted to appeal. The trial judge accepted this statement as the equivalent of an oral motion for a new trial and in arrest of judgment and told the appellant that he would be given the opportunity to file formal additional requests after the notes of testimony had been transcribed. The appellant never filed such motions and instead a direct appeal was taken raising several issues outside the scope of the oral motions. The appellant is represented in this appeal by the voluntary defender.

Generally, an issue not raised in post-verdict motions will not be considered on appeal, even though the issue was raised at pre-trial proceedings or during trial. Commonwealth v. Reid, 458 Pa. 357,326 A.2d 267 (Filed October 16, 1974); Commonwealth v. Bittner, 441 Pa. 216, 221, 272 A.2d 484 (1971); Commonwealth v. Myers, 439 Pa. 381, 384--385, 266 A.2d 766 (1970), and cases cited therein. The Pennsylvania Supreme Court recently discussed this problem in Commonwealth v. Coleman, 458 Pa. 112, 327 A.2d 77 (Filed October 16, 1974) stating:

'Post-verdict motions serve the dual function of allowing the trial court to rectify errors which may have been committed at trial, and of framing and clarifying the issues to be considered should there be an appeal. Because such motions are a critical step in the post-conviction review process, we will scrutinize closely any waiver of the right to file them in order to ensure that the defendant has acted voluntarily and with a full understanding of his rights. See, e.g., Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967); Commonwealth ex rel. Fink v. Rundle, 423 Pa. 133, 222 A.2d 717 (1966). On the other hand, as we said in Commonwealth v. Wallace, 427 Pa. 110, 113, 233 A.2d 218, 220 (1967), 'a defendant, who deliberately and knowingly chooses to bypass the orderly state procedures afforded one convicted of a crime for challenging his conviction, is bound by the consequences of that decision.' See also Commonwealth v. Bolognese, 428 Pa. 405, 239 A.2d 307 (1968); Commonwealth ex rel. Harbold v. Rundle, 427 Pa. 117, 233 A.2d 261 (1967); Commonwealth ex rel. Harbold v. Myers, 417 Pa. 358, 207 A.2d 805 (1967).'

In light of the above cases we cannot now on direct appeal consider the issues which appellant raises. Neither can we dismiss the issues as waived because Coleman, supra, requires that the decision not to file post-verdict motions must be a deliberate, intelligent and voluntary act. To determine if such a decision was deliberate, intelligent and voluntary we must review the post-verdict proceedings. The trial judge at that stage of the proceedings is required by Rule 123(c) of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, to advise the defendant on the record of certain matters pertaining to post-verdict motions set forth in Rule 1123(c):

(c) Upon the finding of guilty, the trial judge shall advise the defendant on the record: (1) of his right to file post-verdict motions and of his right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3)...