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decided: October 3, 1975.



F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Mark Sendrow, Philadelphia, for appellant.

John W. Packel, Chief, Appeals Div., Defender Assn. of Phila., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Manderino, J., joins.

Author: Pomeroy

[ 463 Pa. Page 312]


The appellee, David Carter, was tried without a jury and found guilty of aggravated robbery and a firearms violation. Immediately following announcement of his verdict the trial judge imposed sentence on the robbery conviction of not less than six years nor more than twenty years in prison; sentence on the firearms conviction was suspended. No post-verdict motions were filed prior to sentencing. From the judgment on the robbery verdict, the appellee took an appeal to the Superior Court in which he argued that three alleged errors required a new trial. The assignments of error were: (1) that his waiver of trial by jury had been improperly accepted; (2) that the trial judge obtained knowledge during the trial of Carter's prior criminal record; and (3) that Carter had been denied the effective assistance of trial counsel.*fn1 The Superior Court reversed the judgment of sentence and remanded the case for a new trial on the first ground -- ineffective waiver of jury trial. This holding was considered necessary because of a violation of Rule 1101 of the Pennsylvania Rules of Criminal Procedure,*fn2 in that no written jury trial waiver was included

[ 463 Pa. Page 313]

    in the record. Upon petition of the Commonwealth, we allowed this appeal.*fn3

Of primary importance in our disposition of this appeal is the effect of the appellee's failure to file motions in arrest of judgment or for a new trial. The making of post-verdict motions allows the trial court the first opportunity to pass upon claims of error in the proceeding before it. If that court grants the requested relief, an appeal may have been avoided; if the relief sought is denied, appellate courts will have the benefit not only of the arguments of the parties but also of the lower court's opinion on the issues raised. See Rule 56 of the Rules of the Supreme Court. Thus, post-verdict motions promote judicial economy and the orderly administration of the appellate process. It is for these reasons that, as a rule, issues not raised by way of post-verdict motions in the trial court will not be considered on appeal. Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); See Commonwealth v. Mitchell, 461 Pa. 555, 337 A.2d 292 (1975); Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975).*fn4

[ 463 Pa. Page 314]

The question whether trial counsel for a criminal defendant has effectively represented his client constitutes a necessary exception to this rule. To expect a lawyer to argue his own ineffectiveness would be unrealistic (and often demeaning to the lawyer) and to require a criminal defendant to recognize the ineptitude of his lawyer would be unreasonable. The effectiveness of trial counsel will therefore be considered on appeal despite the fact that the issue was not advanced in the trial court, provided that it has not been waived at any time after the termination of the representation of the defendant by the lawyer whose effectiveness is questioned.*fn5

From what has been said it follows that Carter's failure to file post-verdict motions precluded him from raising in the Superior Court the validity of his waiver of a jury trial and the effect of the trial judge's knowledge of Carter's prior criminal record,*fn6 the issue of ineffectiveness of trial counsel, however, was available to him. Because that issue was raised in his appeal to the Superior Court (the first opportunity to do so after trial counsel was no longer involved in the case) it has not been

[ 463 Pa. Page 315]

    waived. The Superior Court having decided the appeal upon an issue which had not been properly preserved for appellate review,*fn7 the case must be remanded to that court for consideration of the one issue which was properly before it -- whether the appellee was denied the effective assistance of trial counsel.

The order of the Superior Court is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

ROBERTS, Justice.

I agree with the majority that the failure to file post-verdict motions precludes appellee from attacking the validity of his waiver of jury trial in this proceeding. I also agree that the Superior Court must consider the one issue which was properly before it, whether appellee was denied the effective assistance of counsel. However, I believe that the majority has failed to analyze the relationship

[ 463 Pa. Page 316]

    of these two claims correctly and has created the possibility of an unnecessary and burdensome judicial proceeding.

The failure to file post-verdict motions would be a basis for a finding of ineffective assistance of counsel if counsel's decision not to file had no reasonable basis designed to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, a finding of ineffective assistance of counsel would not, of itself, require the grant of a new trial; the only appropriate relief would be the filing of the post-verdict motions and a determination of those motions on the merits.

Normally, the Superior Court should remand to the trial court to hear and rule on the motions in order to create an adequate record for review. See Commonwealth v. Harris, 443 Pa. 279, 281, 278 A.2d 159, 160 (1971). However, such a remand is not necessary in every case. If the record before the Superior Court is adequate to reach the merits of the post-verdict motions, the remand would be an unnecessary burden on the judicial system and would only delay any relief to which appellant might be entitled. See Commonwealth v. Minnick, 436 Pa. 42, 45, 258 A.2d 515, 517 (1969); Commonwealth v. Culpeper, 434 Pa. 15, 19-20, 252 A.2d 624, 626-27 (1969).

I would remand this case to the Superior Court to consider appellant's claim of ineffective assistance of counsel. If the Superior Court concludes that counsel was ineffective and that there is an adequate record from which it can resolve the issue counsel allegedly failed to raise on post-verdict motions, it should decide that issue as well. The case should be remanded to the trial court only if the record is inadequate.

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