No. 51 October Term, 1978, Appeal from the denial of defendant's Post Conviction Hearing Act Petition, in the Court of Common Pleas of Montgomery County, Criminal Division, No. 2999 July Term, 1975.
George B. Ditter, Assistant Public Defender, Norristown, for appellant.
Eric J. Cox, Assistant District Attorney, Chief, Appeals Division, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 266 Pa. Super. Page 415]
This appeal arises from the denial of appellant's petition for relief under the Post Conviction Hearing Act. See 19 P.S. §§ 1180-1 et seq. (Supp.1978-79).
We find appellant's arguments without merit and therefore affirm the action of the court below.
[ 266 Pa. Super. Page 416]
On February 6, 1976, a jury found appellant guilty of having possessed, with intent to deliver heroin, on divers dates, to-wit, on May 19, May 20 and June 2, 1975. Appellant was represented by private counsel during trial, as well as for the filing of post trial motions for a new trial and arrest of judgment, which were denied.
On April 14, 1976, appellant was sentenced to a term of imprisonment from four to ten years. At the sentencing, the following colloquy took place:
The Court: Mr. Wagenhoffer, you have 30 days within which to appeal these judgments of sentences, and the order placing you on probation. If you wish to appeal the appeal is properly taken to the Superior Court of Pennsylvania. If you cannot afford counsel, counsel will be appointed to represent you free for the purpose of perfecting the appeals and arguing them before the Superior Court. If you fail to take the appeal within the requisite 30 days from this date, you will be deemed to have waived your right of appeal and you right to challenge the regularity of this proceeding to date. Do you understand what I have said?
The Court: Have you any questions about it?
On May 14, 1976, with the assistance of the law clinic, appellant filed an appeal pro se. He also petitioned the lower court for the appointment of counsel. The trial court responded by the appointment of the Public Defender within six days.
During June, 1976, however, appellant retained new private counsel. On December 24, 1976, the lower court filed an opinion in compliance with Superior Court Rule 46 responding to the arguments set forth in appellant's appeal brief. In that opinion the lower court stated that it had not received formal notice of appellant's ...