Appeal from order of Superior Court, No. 160, Oct. T., 1969, affirming order of Court of Quarter Sessions of Philadelphia County, May T., 1958, Nos. 237, 1452, 1453 and 1454, in case of Commonwealth v. Samuel Cox.
A. A. Guarino, for appellant.
Paul R. Michel, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Mr. Justice Cohen dissents. Dissenting Opinion by Mr. Chief Justice Bell.
In 1958, Samuel Cox and a co-defendant pleaded guilty in the then Court of Quarter Sessions to a series of eleven armed robberies, having been represented at their joint trial by a court-appointed attorney. Both men were sentenced to serve two consecutive terms of ten to twenty years in prison, plus a ten-year period of probation at the end of the jail sentences. In 1964, Cox filed a petition for a writ of habeas corpus in the Court of Common Pleas of Philadelphia County. This petition was dismissed upon a finding that the guilty plea had been knowingly and voluntarily entered and, on appeal, the Superior Court affirmed the judgment of sentence. Commonwealth ex rel. Cox v. Myers, 206 Pa. Superior Ct. 705, 211 A.2d 545 (1965). We refused to grant allocatur.
Cox next sought relief by petitioning for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. A lengthy evidentiary hearing was held on June 7, 1966, during which both Cox and his original counsel testified about
the trial and the sentencing proceedings. That court held that the petitioner's constitutional rights had not been violated and his federal habeas corpus petition was denied and dismissed on June 14, 1966. United States ex rel. Cox v. Myers, United States District Court, Miscellaneous No. 3196 (E.D. Pa. 1966).
Cox initiated the instant proceedings, with the aid of an attorney by a petition filed in July of 1967, pursuant to the Post Conviction Hearing Act. Cox claims that he was denied the effective assistance of counsel at the time of sentencing in May of 1958. A hearing was held on November 18, 1968, during which no further evidence was offered beyond the transcripts of the testimony taken in prior proceedings. This petition was denied by the Court of Quarter Sessions of Philadelphia County and the Superior Court affirmed that order on June 24, 1969. Commonwealth v. Cox, 214 Pa. Superior Ct. 470, 257 A.2d 331 (1969).*fn* We granted allocatur.
A defendant does not waive his opportunity to litigate issues not raised in earlier post-trial proceedings where he was not represented by counsel in the prior proceedings. Commonwealth v. Johnson, 433 Pa. 582, 252 A.2d 641 (1969). If he was so represented, then he may thereafter be barred from attacking the judgment of sentence. Commonwealth v. Black, 433 Pa. 150, 249 A.2d 561 (1969). Cox was apparently without an attorney in the 1964 habeas corpus proceedings. Therefore, he may still assert that he was ineffectively represented at the time of sentencing, due to his attorney's alleged conflict of interest.
The trial court did not have the aid of a presentence investigation, and the only comment made by the attorney who represented ...