Commonwealth v. Carey

*377Dissenting Opinion by

Van der Voort, J.:

I must vigorously dissent.

In my opinion, the majority has reversed a conviction in a procedurally inappropriate manner. Further, even if our procedural rules would allow such a disposition, I don’t believe such action could be substantively supported in the instant case.

First, our procedural rules make it clear that the issue relied upon by the majority is improperly before this Court on this appeal. The record shows that the appellant raised the argument of invalid jury waiver in an appeal pursuant to the Post Conviction Hearing Act, in which appeal he sought both to have his waiver of a jury trial declared invalid and the right to file post-trial motions nunc pro tunc.

After hearings, the lower court, in an opinion filed January 3, 1972, dismissed appellant’s claim of invalidity of his waiver of the right to jury trial but granted the appellant the right to file post-trial motions nunc pro tunc. Although the appellant appealed that part of the lower court’s action unfavorable to him, to our Court, he abandoned that appeal and sought a remand for the filing of post-trial motions, which remand was granted. This appeal arises from the denial of those post-trial motions. While the majority of our Court relies upon an allegedly invalid waiver of jury trial for reversal, that issue was never properly and timely raised on appeal. Further, the majority relies on testimony adduced at the PCHA hearing for its decision. Procedurally, it is completely inappropriate for this Court to review the 1972 Order of the PCHA court on which appeal rights were long ago waived and abondoned. It is clear that the appellant’s tactical decision to pursue other remedies, and abandon his right to appeal the denial of post-conviction relief (relating to waiver of jury trial) precludes our consideration of such denials in the instant appeal. Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83 (1971).

*378While I believe that appellant is procedurally precluded from consideration of his claim of invalid waiver of right to jury trial, I would not join the majority’s vote for reversal even if this argument were appropriately before us in this appeal. The lower court, at the PCHA hearing, dismissed appellant’s argument on the basis of a credibility determination and I see no abuse of discretion in that regard by the hearing judge.

The trial record shows an extensive trial colloquy with the appellant, by defense counsel, concerning the waiver of jury trial, wherein the appellant testified under oath that absolutely no promises had been made to him to induce his waiver of a jury trial. He further denied he was being forced to execute a waiver of jury trial. He clearly understood the assertions of the trial judge that he could receive a ten to twenty year sentence if convicted. If he perjured himself at that time (as he now claims) defense counsel made no action to correct what he said. Moreover, neither appellant nor his trial counsel referred to any promises or understanding regarding sentence at either the original sentencing or at a later hearing for reconsideration of sentence.

At the PCHA hearing, the appellant testified his trial counsel did not mention anything about the judge being involved in the sentencing recommendation promised by the District Attorney.1 His testimony in this regard differed from that of his trial counsel; the testimony of the trial judge (now the Honorable Justice Robert C. Nix of our Supreme Court) also differed from defense counsel’s concerning understandings as to sentence. The appellant also testified at the PCHA hearing that his trial counsel “didn’t guarantee. He made a recommendation.” This falls far short of the coercive impact trial counsel testified he exerted on appellant to procure a waiver of jury trial. On the basis of this extensive record I believe the *379PCHA court was justified in finding the testimony of defendant, and even that of his trial counsel, unconvincing.2 Such credibility determinations by the hearing court, absent a clear abuse of discretion, should not be the basis for reversal by an appellate court. Commonwealth v. Riggins, 452 Pa. 411, 305 A.2d 31 (1973).

I find the other claims of the appellant totally without merit and would therefore affirm.

Watkins, P. J., joins in this dissenting opinion.

. This promise was carried out by the attorney for the Commonwealth after the appellant’s conviction.

.Determinations of credibility turn not only upon the assessment of truthfulness on the part of the witness, but also on the witness’ recollection, responsiveness to questions and general demeanor. Comments concerning defense counsel’s credibility should not be implied to indicate doubt as to his truthfulness. It is interesting to note that all of the witnesses, including Justice Nix had slightly differing recollections of the facts preceding and during the trial. Such differences must be expected in view of the long time period between the trial and the PCHA hearing.