3. Failure to demur.
No mention of trial counsel's failure to demur to the charge of armed robbery upon the failure of the government to produce a weapon was made at the PCHA hearing. However, since it is not necessary to produce a weapon in order to convict an accused of armed robbery, we do not believe there was any need to inquire into counsel's trial tactics.
4. Findings of the State Court.
The state court judge denied PCHA relief, finding that Lewis' testimony was more credible than relator's on contested issues. We will not review the state court's findings on credibility.
We also believe that under the totality of the circumstances test enunciated in Moore, there is no support for Mandrier's contention that he was denied the effective assistance of counsel, i.e., counsel of normal competency, at trial. Mandrier acknowledged at the PCHA hearing that he was not prevented from telling the story as he wanted to have it told or from calling witnesses in his own behalf. Furthermore, since the state court judge determined that Lewis' testimony was more credible than relator's, we must assume that Lewis adhered to his normal methods of procedure in his representation of Mandrier. We believe that Mandrier's allegation regarding Lewis' failure to demur to the armed robbery charge is frivolous.
We have also reviewed the transcripts of Mandrier's trial and find nothing which would indicate that he was denied counsel of normal competence.
B. Following Trial
The PCHA record establishes that relator's right to a direct appeal were not obstructed by state officials.
Mandrier's contention that he was denied the effective assistance of counsel following his conviction but during the time allotted for post-trial motions or direct appeal was also addressed at the PCHA hearing. Since the state courts have had an opportunity to review that contention, relator has satisfactorily exhausted his state remedies. See United States ex rel. Geisler v. Walters, 510 F.2d 887 (3rd Cir. 1975); United States ex rel. Hayward v. Johnson, 508 F.2d 322 (3rd Cir. 1975).
An examination of the trial records reveals that Mandrier was sentenced immediately after the court adjudged him guilty of armed robbery. He was then advised of his right to file post-trial motions and to a direct appeal in the event the post-trial motions were denied. The judge then asked Mandrier if he desired to file a motion for a new trial. When he responded that he did not, the judge said, "Very well then, the sentence shall be effective forthwith."
Mandrier, citing Commonwealth v. Blum, 210 Pa.Super. 529, 233 A.2d 613 (1967), contends that the aforementioned procedure denied him due process of law in that the imposition of sentence immediately following conviction deprived him of adequate time to consider whether to file post-trial motions or to take a direct appeal without the effective assistance of counsel. In short, relator claims that he should not be bound by his action in informing the court that he did not intend to appeal since the decision was not knowingly and intelligently made with the assistance of counsel.
While some jurisdictions regard post-trial motions as a part of the trial package, Pennsylvania has chosen to view post-trial motions as a part of the appellate process, at least for constitutional purposes. United States ex rel. Boyd v. Rundle, supra. Under Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), as interpreted in Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 159, 218 A.2d 811 (1966) and Commonwealth v. Grillo, 208 Pa.Super. 444, 448, 222 A.2d 427 (1966), a convicted person is entitled to the effective assistance of counsel in deciding what post-trial actions to take, if any. See United States ex rel. Boyd v. Rundle, supra.
In Commonwealth v. Blum, supra, the court held that the time allotted for filing post-trial motions may not be shortened by the action of the trial judge. Thus, it was held in Blum that motions filed after sentencing but prior to expiration of the seven-day period in which to file post-trial motions were timely.
While Mandrier never filed any post-trial motions in this case, we understand his argument to be that the decision not to file such motions or to appeal was not an informed one because of a lack of the effective assistance of counsel.
In United States ex rel. Boyd v. Rundle, supra, the court concluded that Blum was inapplicable because the relator had expressed a desire for sentencing prior to the expiration of the time allowed for post-trial motions. In this case, on the other hand, Mandrier was sentenced immediately after conviction. But Mandrier was informed of the post-trial remedies available to him, and we believe that his decision not to pursue those post-trial remedies was an intelligent and knowing waiver of those rights under the facts presented here. In short, Mandrier, in the presence of his attorney, knowingly and intelligently waived his right to file post-trial motions and allowed the expiration of the time permitted. We, therefore, conclude that relator was not denied the effective assistance of counsel following imposition of sentence. Accordingly, his petition will be dismissed.
An appropriate order follows.