Cecil B. Moore, Philadelphia, for appellant.
Edgar B. Bayley, 1st Asst. Dist. Atty., Carlisle, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result. Manderino, J., filed a dissenting opinion. Jones, C. J., did not participate in the consideration or decision of this case.
On January 11, 1973, appellant Letitia Denise Smallwood was convicted of arson and two counts of murder in the first degree following a jury trial. Her trial counsel filed post-trial motions urging that her conviction was (1) contrary to the evidence, (2) contrary to the weight of the evidence, and (3) not supported by proof of arson beyond a reasonable doubt. Shortly after post-trial motions were filed, trial counsel was replaced by new counsel (hereinafter "appellate counsel") who was to brief and argue post-trial motions and file any subsequent appeal.
Argument on post-trial motions was initially scheduled for May 29, 1973, but was rescheduled for June 20, 1973 for appellate counsel's convenience. Appellate counsel failed to appear at the June 20, 1973, hearing and also
failed either to file a brief or to offer any excuse for his absence. Hearing on the post-trial motions was rescheduled for July 11, 1973. On the appointed date, appellate counsel again failed to appear, to file a brief, or to offer any excuse for his absence. On September 10, 1973, appellate counsel filed a brief arguing the points listed above and requesting permission to present other arguments when the notes of voir dire examination of jurors were transcribed. The trial court scheduled argument for post-trial motions for November 27, 1973. Once again, appellate counsel failed to appear to argue the motions.
Without rescheduling argument, the trial court proceeded to decide post-trial motions, denying them on the merits in an opinion filed January 10, 1974. On January 30, 1974, appellate counsel petitioned for reargument of the post-trial motions and requested that the notes of voir dire examination be transcribed. These motions were denied by the trial court in an opinion filed February 15, 1974, because all issues raised by post-trial motions had been properly treated in its original opinion and because any issue based upon the voir dire examination of jurors had long since been waived. The refusal to transcribe the notes of voir dire examination was appealed to this Court, but the Commonwealth's motion to quash the appeal was granted on April 23, 1974.
On direct appeal to this Court,*fn1 appellant, through appellate counsel, argues: (1) that she has not waived her claim of ineffective assistance of trial counsel by failure to raise the issue at post-trial motions; (2) that trial counsel was ineffective (a) in his conduct of voir dire examination of the jurors and (b) in his failure to request that the jury be sequestered during the trial; (3) that the Commonwealth's expert witness on the cause of the fire was not properly qualified on the record; and (4)
that the evidence was not sufficient to prove guilt beyond a reasonable doubt. All of these allegations are either meritless or waived and we ...