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COMMONWEALTH PENNSYLVANIA v. OTIS BABB (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
OTIS BABB, APPELLANT



Appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, Nos. 1035-1039, November Sessions, 1975. No. 879 October Term, 1976.

COUNSEL

Albert L. Deutsch, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion in which Jacobs and Van der Voort, JJ., join.

Author: Hoffman

[ 246 Pa. Super. Page 472]

Appellant raises the following contentions for our review: (1) he did not knowingly and intelligently waive his right to a jury trial because he did not know the maximum sentence nor did he know that a jury must be selected from the community-at-large, (2) trial counsel was ineffective because he did not interview either the eyewitnesses to the crime or appellant's alibi witnesses, and (3) trial counsel denied appellant the right to defend himself by refusing to allow him to testify. The Commonwealth argues that appellant waived the right to present these arguments because he failed to file post-verdict motions alleging specific trial errors. Appellant, however, responds that he did not voluntarily and understandingly waive his right to file post-verdict motions because the lower court did not comply with Rule 1123(b) or 1123(c), Pa.R.Crim.P., 19 P.S. Appendix. We conclude that appellant is entitled to an opportunity to file post-verdict motions nunc pro tunc and that the lower court must hold an evidentiary hearing on trial counsel's ineffectiveness.

[ 246 Pa. Super. Page 473]

On October 9, 1975, appellant was arrested and charged with criminal conspiracy,*fn1 robbery,*fn2 violation of the Uniform Firearms Act,*fn3 and other related offenses. These charges stemmed from an armed robbery of a grocery store by three persons. On December 23, 1975, appellant waived his right to a jury trial after a colloquy with the trial court. At trial, the proprietor of the grocery store identified appellant as one of the perpetrators of the robbery. Appellant's trial counsel cross-examined the witness and then both the Commonwealth and the defense rested. The trial court found appellant guilty on all of the above charges. Appellant's trial counsel made an oral post-verdict motion, but stated that there were no appealable issues. Not surprisingly, the trial judge denied counsel's post-verdict motion and then sentenced appellant. Appellant did not file any written post-trial motions. Appellant then retained new counsel and this appeal followed.

We must first determine whether appellant waived his right to present his arguments to this Court because he did not file oral or written post-verdict motions. After finding appellant guilty, the trial court informed appellant of his right to appeal and the following interchange between the court and appellant's trial counsel occurred:

"Now, . . . you have an absolute right to appeal from the sentence which this Court will impose upon you, but in order to file that appeal, you must first file post trial motions asking that this Court either grant you a new trial because mistakes were made in your trial or to order your discharge because the evidence was insufficient to establish your guilt.

"These post trial motions must be filed within seven days from today or you will lose your right to file them.

[ 246 Pa. Super. Page 474]

"Your attorney, if you request, will prepare and then argue the post trial motions on your behalf and if they are denied, he will assist you in the filing of an ...


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