Commonwealth v. Hudgens

PRICE, Judge,

dissenting:

I agree in most respects with the analysis applied to this case by the majority and I would likewise affirm the convictions of attempted forgery, forgery and burglary. I do not, however, believe that the proper disposition of the assault conviction herein, No. 75-11,187, is to vacate the judgment of sentence and remand for a hearing on the effectiveness of trial counsel. I therefore dissent.

In Commonwealth v. Kinsey, 249 Pa.Super. 1, 375 A.2d 727 (1977), we made the following observation.

“At the conclusion of trial, Rule 1123(c) assumes a position of primary importance. This section states:
‘(c) Upon the finding of guilt, 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 as to set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal.’
Responsibility rests upon the trial judge to impart the above-recounted information to the defendant.” Commonwealth v. Kinsey, supra 249 Pa.Super. at 5, 375 A.2d at 729.

The post-trial colloquy in this case was clearly defective in failing to meet the requirement of Pa.R.Crim.P. 1123(c)(3). At two points in its colloquy, the trial court skirts this necessary information. The relevant portions are as follows:

“You have the right to file a Motion for a New Trial within seven days on the grounds of trial errors prejudicial to you, or that the verdict is against the weight of the *477evidence, or for any other possible reasons, the reasons however must be set forth in the motion. (N.T. 48-49).
If such motions are filed and the Court rules against you, you have the right to appeal such rulings to a higher Court with all of the same rights to the services of free counsel for such appeals as already explained with respect to the filing of such motions. If such motions are not filed, or are filed and later voluntarily withdrawn by you, the legal affect [sic] will be that the verdict will stand and you would be waiving or giving up your right to appeal to a higher Court.” (N.T. 49).

Nowhere does the lower court inform the defendant that only those claims specifically asserted in post-trial motions may be raised on appeal.

“[I]n the absence of trial court compliance with Rule 1123(c), where the defendant seeks, on appeal, to raise an issue not properly preserved post-trial, no waiver theory may be applied.[1] This is equally true where no post-trial motions of any kind have been entered and where inadequate oral motions have been made. In either of these situations, the proper remedy is to remand to the court below for compliance with Rule 1123(c) and the filing of proper post-trial motions. Commonwealth v. Miller, 232 Pa.Super. 171, 335 A.2d 528 (1975); Commonwealth v. Dimitris, 231 Pa.Super. 469, 331 A.2d 701 (1974).” Commonwealth v. Erhart, 248 Pa.Super. 481, 493, 375 A.2d 342, 348, (1977) (concurring opinion by Price, J.).

The proper disposition in this case, both by my own reasoning and according to our prior decisions, is to remand to the trial court for full compliance with Pa.R.Crim.P. 1123 and, presumably, the filing of proper post-trial motions. If the post-trial motions raise claims of ineffectiveness requiring a hearing, a hearing should be held. Following the disposition of post-trial motions, appellant would have the right to another appeal to this court.

. This statement presupposes that a claim of no voluntary and understanding waiver of post-trial motions is asserted on appeal, as it is in the instant case. See Appellant’s Brief on No. 75-11,187 at 7.