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decided: February 1, 1980.


No. 28 January Term, 1979 Appeal from Denial of Post Conviction Hearing Act Petition by Vogel, J., in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 2273 April Term, 1973, on August 17, 1978.


Arthur J. King, Joseph A. Ciccitto, Asst. Public Defenders, Norristown, for appellant.

Ronald T. Williamson, Chief, App. Div., Asst. Dist. Atty., Lois S. Hagarty, First Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., filed a concurring opinion. Eagen, C. J., concurs in the result.

Author: Flaherty

[ 487 Pa. Page 536]


On January 21, 1974 in the Court of Common Pleas of Montgomery County, Pennsylvania, the appellant, Sanford L. Shore, was convicted of murder in the second degree. Judgment of sentence was set at ten to twenty years imprisonment. No post-trial motions were filed. On June 6, 1978, a petition to allow post-trial motions nunc pro tunc was filed. After a hearing held pursuant to the Post Conviction Hearing Act, the petition was denied and this appeal followed.*fn1

Appellant asserts that his trial counsel was ineffective because appellate rights were not preserved. Defendants have the burden of showing ineffectiveness of counsel as a basis for relief in post-conviction hearings. Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978). Whether a "particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest" is the test for effectiveness of counsel. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).

[ 487 Pa. Page 537]

Counsel cannot be deemed ineffective for failing to advance frivolous issues; only when an abandoned claim is of arguable merit need we inquire into whether counsel had reasonable grounds for not pursuing it. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979). Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978).

Appellant's trial counsel did not file post-trial motions preserving for appeal certain issues raised, but denied, in pre-trial motions. Appellant reasons that if issues were not too frivolous to have been grounds for pre-trial motions, they should be treated as being just as meritorious in the post-trial stage, and that counsel fails as a zealous advocate by not pursuing all such issues on appeal. We disagree. After adversary hearings on pre-trial motions, issues raised therein may lose their appearance of arguable merit. Furthermore, the mere filing of motions does not guarantee that issues raised therein have a reasonable possibility of being found meritorious. Were appellant's reasoning to be accepted, the decision to appeal would become a perfunctory process requiring counsel, for their own protection, to file appeals whenever defendants have "nothing to lose" because of the possibility, however unreasonably remote, of unexpected appellate results. Counsel's discretion to avoid raising issues devoid of arguable merit preserves the court system for hearing legitimate issues as expeditiously as possible.

Appellant asserts, without specifying alleged errors, that the PCHA court incorrectly found the denied pre-trial motions to be without arguable merit for appeal. At the PCHA hearing, trial counsel testified that no post-trial motions were filed because, after thoroughly researching grounds to challenge pre-trial rulings, no authority could be found with which to assert that the court had ruled erroneously. After reviewing the record of the PCHA proceedings, we find ample support for the conclusion of the court

[ 487 Pa. Page 538]

    therein that filing of post-trial motions would have been to no avail; hence, appellant was not denied effective counsel.*fn2

Appellant also contends that he did not knowingly and voluntarily waive appellate rights. See Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978). It is asserted that trial counsel, hoping to prevent hardship from delay, and believing an appeal would not likely be successful, advised against appealing without suggesting possible grounds for appeal and without explaining the need to file post-trial motions. However, counsel testified to having

[ 487 Pa. Page 539]

    conferred with appellant on the day of the conviction and to having explained in considerable detail appellate options available. The conference was evidenced by a letter written later that day which appellant admitted to having received from counsel.*fn3 This admission weighs strongly against the credibility of the assertion that appellate rights were not explained.

After the conviction, according to trial counsel, appellant never expressed interest in a timely appeal. Indeed, at sentencing, appellant said he wanted rehabilitation and didn't care whether he received it in a state hospital or in a penal institution. The court below found further doubt case upon appellant's credibility because, on direct examination, appellant claimed that counsel never discussed a strategy for the sentencing hearing but on cross-examination an admission was obtained that such a discussion possibly did occur. Appellant denied receiving a letter from counsel promising a visit to explain sentencing.*fn4 Counsel did not specifically

[ 487 Pa. Page 540]

    recall keeping this appointment but testified that he made numerous visits to confer with appellant and believed all commitments were kept. Appellant's final assertion with regard to the knowing and voluntary waiver of appeal issue is that the record indicates he held a misapprehension that appeal and treatment were mutually exclusive options. However, our review of the record does not confirm such a misunderstanding, and, in view of the heretofore discussed advice given appellant with respect to appellate options, we find that the assertion of such a misapprehension lacks basis for credibility. The record confirms that appellant's main concern was with prompt treatment, but not that appellant believed taking an appeal would foreclose treatment. Finally, the record of the March 1, 1974 sentencing hearing contains a dialogue which indicates that appellant had previously been advised of post-trial options and the effect of failure to exercise those options.*fn5

[ 487 Pa. Page 541]

Appellant was assisted by effective counsel at trial. Appellate rights were waived knowingly and voluntarily. Accordingly, we affirm the order of the court below denying the petition to file post-trial motions nunc pro tunc.

Order affirmed.

ROBERTS, Justice, concurring.

The record clearly demonstrates that appellant was aware of his right of appeal, and the consequences of failing to file it timely. The record does not demonstrate that appellant's decision not to appeal was based on advice of counsel. Although appellant claims that trial counsel was ineffective in failing to preserve appellant's appellate rights, counsel cannot be held ineffective unless appellant demonstrates that the course of action chosen by counsel had no reasonable basis. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). On this ground, I concur in the result. Thus any discussion by the majority of the merits of the claims which might have been raised on appeal must be considered dictum.

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