No. 1460 April Term, 1978, Appeal from the Judgment of sentence of the Court of Common Pleas, Westmoreland County -- Criminal Division No. 1259, 1259A October Term, 1977.
Dante G. Bertani, Public Defender, Greensburg, for appellant.
Morrison F. Lewis, Jr., Assistant District Attorney, Greensburg, for Commonwealth, appellee.
Price, Hester, and Montgomery, JJ. Price, J. files a dissenting statement.
[ 268 Pa. Super. Page 297]
Appellant was convicted following a jury trial in June, 1977, of Possession of a Controlled Substance, Possession with Intent to Deliver, and Delivery of a Controlled Substance under the Controlled Substance Drug, Device and Cosmetic Act.*fn1 He was thereafter sentenced on August 11, 1977, to concurrent terms of imprisonment for not less than five nor more than 10 years. Appellant was represented at trial by private counsel. On the same day of sentencing, appellant filed this appeal in Forma Pauperis and thereafter the public defender's office was appointed to represent him.
The ineffectiveness of trial counsel is alleged on appeal citing counsel's failure to file post verdict motions, failure to obtain a witness for trial, and failure to stipulate to or object to laboratory reports. Since appellant is represented on appeal by counsel other than counsel who represented him at the trial level, the issue of ineffectiveness is properly raised for the first time on direct appeal. Commonwealth v. Burch, 248 Pa. Super. 8, 13, 374 A.2d 1291 (1977).
Although the decision not to file post verdict motions is not per se ineffectiveness,*fn2 upon examination of the trial transcript, we find that counsel's failure to file was in fact based on sheer ignorance of procedure rather than any finding on his part that the record presented no appealable issues. Following the sentencing of appellant, over a month and one-half after the trial, counsel stated the following:
MR. KRONZ: We ask that the bond be continued pending the filing of the appeal.
THE COURT: I don't know that any appeal has been filed.
[ 268 Pa. Super. Page 298]
MR. KRONZ: For a new trial which I present to the Court now, but the back record to the Public Defender's case for Mr. Vasquez is filed appropriately with the Court. The transcript for this trial has been prepared and has been filed with the Clerk of Court's. So that we have waited until now ...