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.
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).
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. ...