Nos. 342 and 445 January Term, 1976, Appeal from Judgments of Sentence of the Court of Common Pleas, Philadelphia, Criminal Section, Imposed on Indictment Nos. 2056-2058-2059 and 2062, July Sessions, 1974.
Warren R. Hamilton, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Ann C. Lebowitz, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Nix, J., joins this opinion and files a concurring opinion. O'Brien, J., concurs in the result. Larsen, J., files a dissenting opinion, in which Flaherty, J., joins.
On April 8, 1975, appellant Ronald Upshur was convicted by a jury of murder of the first degree, robbery, and
conspiracy. The court sentenced him to consecutive prison terms of life and twenty-five to fifty years. On direct appeal,*fn1 appellant seeks relief on the ground, inter alia, that the trial court improperly refused trial counsel's request for an "accomplice" charge, and that trial counsel's subsequent failure to challenge this ruling in written post-verdict motions constitutes ineffective assistance of counsel. We agree, vacate the judgments of sentence, and grant a new trial.
On April 15, 1975 trial counsel filed timely post-verdict motions averring in boiler plate fashion that the verdicts were unsupported by the evidence and contrary to law. At post-verdict argument, however, trial counsel briefed and argued numerous other issues. The court en banc held that the issues raised by written post-verdict motions lacked merit, and that the other issues had been waived because they were not filed in written post-verdict motions pursuant to Pa.R.Crim.P. 1123.*fn2 See Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d 570 (1978) (post-verdict court properly exercises discretion by refusing to address issues not presented in written post-verdict motions).
Appellant, through new counsel, now contends that trial counsel was ineffective for failing to include these other issues in ...