which could possibly serve as the basis for the granting of his petition.
Relator's contention that he was denied effective legal representation is also without merit. Relator first alleges that he was denied effective assistance of counsel at the April 1968 hearing on his post-trial motions in that his counsel, George C. Corson, Jr., Esq., did not "present all seven allegations assigned in the petition." (Petition p. 5). In reality there were only six contentions raised by the petitioner in his motion filed in propria persona. The seventh "contention" was a request to allow petitioner's counsel to raise additional contentions which he might wish to assert on behalf of relator.
Mr. Corson apparently raised two additional grounds, to wit, (1) the sentence on the assault and battery with intent to ravish charge was erroneous, and (2) the evidence was insufficient to support the conviction of assault and battery with the intent to ravish. The Montgomery County Court sitting en banc, decided seven of the eight contentions (five of petitioner's and two of counsel's). It does not appear that counsel argued, nor did the court decide, relator's claim that he was denied his right to confrontation of witnesses in violation of the Sixth Amendment. This Court finds that counsel's representation of defendant at the hearing on his motion in arrest of judgment, carried on under most difficult circumstances, clearly afforded relator effective assistance of counsel. The fact that counsel did not argue a highly questionable claim before that court is not a sufficient basis to support an allegation of ineffective assistance of counsel.
Relator also contends that his counsel abandoned him on his appeal from the generally adverse ruling of that court. There is no need to belabor this point. After the appeal to the Superior Court was initiated, that court, in an Order dated September 27, 1968, ordered the Public Defender's Office of Montgomery County to represent relator on appeal. However, the relator expressly argued against such appointment because "it would be for the sole purpose of delay and against appellant's will" and that he "waived" counsel and "Counsel Is Refused". See Appellant's Argument Against Appointment of Counsel. Relator also waived the appointment of counsel on his appeal to the Supreme Court of Pennsylvania where relator clearly had printed on his Petition for Allowance of Appeal In Forma Pauperis that "Petitioner waives appointment of counsel". There is no question but that relator intelligently and intentionally waived his known right to counsel on appeal. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966).
Relator next alleges that he was denied his right to confront witnesses whose testimony could deprive him of his liberty. This allegation is based on the fact that, in response to an inquiry by the court, counsel for the Commonwealth stated within the hearing of the jury that he intended to call one further witness, a doctor, who would testify "* * * that she was treated and was at the hospital for four days as she testified, and as to her condition when she arrived." (N.T. p. 51); and that this witness was never in fact called. As previously stated, while this contention was raised by relator in his state court petition, it was not argued by counsel nor decided by the Montgomery County Court. However, it merits little attention and therefore can be dismissed without affront to the considerations of comity. United States ex rel. Drew v. Myers, 327 F.2d 174, 183 (3rd Cir. 1964). It is enough to say that the jury had sufficient evidence from the prosecutrix's own testimony to find the defendant guilty of the charges. Miss Mary Hurley testified that she spent four days in the hospital as a result of the incident (N.T. p. 13); that he choked her (N.T. pp. 4, 6); and dragged her all around (N.T. pp. 4, 5, 6). Miss Hurley took the stand and was in fact cross-examined by counsel for defendant. The district attorney's comments were no more specific or detailed than were Miss Hurley's. It is clear that there is no constitutional error.
The fourth and final contention of the relator is that his trial counsel was ineffective in that he did not inform relator of his right to make certain post-trial motions. No allegation is now made of ineffective assistance during the trial itself (P.C.H. p. 4; Supplemental Brief pp. 4-7). Relator testified at his Post Conviction Hearing Act hearing that counsel did not inform him that he could file post-trial motions; that he did not independently know that he had such a right; (P.C.H. pp. 13-14) and that if he had known he would have filed them (P.C.H. pp. 17, 21). Herbert C. Nelson, Esq., relator's trial counsel also testified at that hearing that he did not recall discussing the matter of post-trial motions with the defendant. Mr. Nelson went on to testify that "I think I, in my judgment as a lawyer, based upon the trial which we had just gone through, felt that I was doing the right thing for this defendant." (P.C.H. p. 28) and "I did not think I would have accomplished anything by asking for a new trial at that point." (P.C.H. p. 29). George C. Corson, Jr., Esq., who represented relator at the post-conviction hearing on February 27, 1967, brought to the court's attention several then recent Pennsylvania Supreme Court decisions which had been decided subsequent to the trial of the defendant (June 15, 1965). These cases had expanded the Douglas rights (See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).) to include the right to assistance of counsel on appeal, regardless of the prospects of success, as long as the defendant desired it. Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966). (Decided June 24, 1966). The post-conviction court, apparently on the basis of this new law, held that relator had not waived his right to assistance of counsel in filing post-trial motions and granted him the right to do so nunc pro tunc. The Court agrees with the Montgomery County Court that relator did not waive his right to counsel at this critical point in the criminal process. However, since the Court finds that this infirmity was remedied by granting relator the right to file post-trial motions nunc pro tunc, we cannot agree with relator's contention that failure of trial counsel to inform him of this right constitutes ineffective assistance of counsel. In fact relator, raising seven contentions, did file a motion for a new trial and a motion in arrest of judgment. These contentions were argued before the Montgomery County Court en banc, and were appealed to both the Superior and Supreme Courts of Pennsylvania. Clearly these facts do not constitute a basis upon which a petition for a writ of habeas corpus may be granted.
The case of Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766 (1964), has been brought to the attention of the Court. In that case the Georgia Supreme Court granted the defendant a new trial because he was without counsel from the imposition of the death sentence until after the time to file a motion for a new trial had expired. In Sims, the defendant had never been granted the right to make a motion for new trial nunc pro tunc and therefore he had never been able to make such a motion. In our case, relator was given the opportunity to file post-trial motions nunc pro tunc; he filed such motions; and the Montgomery County Court decided the motions. For the above-stated reason this Court does not find the Sims case apposite.
And now, to wit, this 15th day of December, A.D. 1969, it is ordered that relator's petition for a writ of habeas corpus be and the same is hereby denied.
There is no probable cause for appeal.
And it is so ordered.