NO. 1924 OCTOBER TERM, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County at Nos. 804, 805 and 807 June Sessions, 1972.
Marilyn J. Gelb, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, submitted a brief for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 443]
The appellant Larry Howard, was indicted in Philadelphia County on the following charges:
No. 804 June Sessions 1972 -- assault and battery, aggravated assault and battery and assault with intent to kill;
No. 805 June Sessions 1972 -- assault and battery upon a police officer;
No. 806 June Sessions 1972 -- receiving stolen goods; and
No. 807 June Sessions 1972 -- carrying a firearm upon a public street without a license.
The charges arose out of an incident involving the shooting of a Philadelphia police officer on the evening of May 30, 1972.
Prior to his trial on the charges, defendant, represented by privately retained counsel, filed a motion to suppress identification and physical evidence, as well as statements made to police during interrogations. After hearings on the motion, only certain line-up identification evidence was suppressed. Appellant was tried on the charges and a jury found him
[ 258 Pa. Super. Page 444]
guilty of assault with intent to kill, aggravated assault and battery on a police officer, and the weapons charge. Subsequently, pro forma post-trial motions were filed, challenging the sufficiency of the evidence and propriety of the sentence. At trial and on post-trial motions, appellant was represented by the same privately retained attorney who had represented him on pre-trial motions. Following the denial of post-trial motions, appellant was sentenced.
No direct appeal was ever filed. Subsequently, appellant filed a pro se appeal under the Post Conviction Hearing Act (PCHA),*fn1 alleging several claims of ineffective representation by counsel, including counsel's failure to appeal from the judgment of sentence. New counsel was appointed to assist appellant and a hearing was held on the petition. The PCHA court found that appellant had been denied his right of direct appeal and granted him the right to file such an appeal nunc pro tunc. Other issues, in such circumstances were not resolved by the PCHA court. See Commonwealth v. Drummond, 238 Pa. Super. 311, 357 A.2d 600 (1976).
On appeal, several claims of trial court error are raised. Each is coupled with an argument that trial counsel was not effective as a result of his failure to include such arguments in post-trial motions. While the failure to include an issue in post-trial motions would ordinarily operate as a waiver of such issue for purposes of appellate review,*fn2 the claim that counsel was not effective in not raising such issue in the lower court may vitiate the waiver. In situations like the instant one, our ...