No. 22 March Term, 1977, Appeal from the Judgment of Sentence entered on October 14, 1970, of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. 712 January Term, 1970
H. David Rothman, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Robert A. Zunich, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., took no part in the decision of this case. Roberts, Manderino and Nix, JJ., concur in the result. Pomeroy, J., files a dissenting opinion. Eagen, C. J., dissents and is of the view that the issue is waived.
Appellant, Clarence Bailey, was convicted by a jury of murder of the first degree. Post-verdict motions were filed and argued, and the court directed both parties to file briefs. Despite repeated requests by the court, no brief was filed by appellant's trial counsel.*fn1 The post-verdict motions were dismissed and appellant was sentenced to life imprisonment.
Appellant, represented by the Allegheny County Public Defender, filed an appeal to this court. He then petitioned this court to remand the case for an evidentiary hearing on the jury selection procedure in Allegheny County. By a per
curiam order of February 11, 1971, this court granted appellant's petition.
No further action was taken until July 19, 1973, when appellant, now represented by privately-retained counsel, filed a petition under the Post Conviction Hearing Act (PCHA).*fn2 Appellant also petitioned for a hearing pursuant to our February 11, 1971 remand order. A hearing pursuant to both petitions was held on November 2, 1973.
Following the hearing, the court below filed an opinion, holding that appellant failed to show that blacks were systematically excluded from jury service. The court granted appellant's post-conviction relief by finding that appellant was denied the effective assistance of counsel when trial counsel failed to file a brief in support of post-verdict motions. The court set aside its order dismissing appellant's post-verdict motions and ordered that the post-verdict motions be argued and briefed before the court en banc. The court made no other disposition concerning the other allegation in the PCHA petition.
On August 6, 1976, the court en banc denied appellant's post-verdict motions. This direct appeal followed.
Although appellant does not challenge the sufficiency of the evidence, this court has an independent duty to review the evidence in all convictions for murder of the first degree. Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187. As we have often stated, the standard when reviewing the sufficiency of the evidence is:
"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the ...