No. 122 March Term, 1979, Appeal from Order of the Superior Court at No. 350 April Term, 1978, Affirming Order of the Court of Common Pleas, Criminal Division, of Allegheny County, at Nos. CC7505020A and CC7505021A.
John H. Corbett, Jr., Paulette J. Balogh, Asst. Public Defenders, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Charles W. Johns, Asst. Dist. Atty., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., files a dissenting opinion.
Appellant, Charles W. Johnson, a/k/a Candy Man West, was convicted in 1975 of three separate violations of the Controlled Substance, Drug, Device and Cosmetic Act;*fn1 towit, delivery of a controlled substance (L.S.D.), possession with intent to deliver a controlled substance (L.S.D.) and possession of a controlled substance (L.S.D.). No post-verdict motions were filed and appellant was sentenced to a prison term of four to ten years for the delivery conviction. Sentence was suspended on the remaining convictions.
In July of 1977, appellant filed a petition under the Post Conviction Hearing Act*fn2 alleging, inter alia, that he had been denied the effective assistance of counsel when trial counsel failed to file post-verdict motions despite appellant's instructions that counsel do so. A hearing was held and the petition was denied on October 11, 1977. The Superior Court affirmed per curiam. Commonwealth v. Johnson, 266 Pa. Super. , 405 A.2d 548 (1979), and we granted appellant's petition for allowance of appeal.
Instantly, appellant again argues that he was denied the effective assistance of counsel because trial counsel failed to file post-verdict motions. The facts are as follows.
At the end of trial, the court asked appellant if he wished to file post-verdict motions. After conferring with appellant, trial counsel informed the court that no decision had been made on whether said motions would be filed. The court informed appellant that he had seven days to make a decision. No motions having been filed, appellant appeared ten days later for sentencing. When counsel argued that his client had been erroneously convicted, the court again stated that appellant could still file post-verdict motions. Before sentence was imposed, appellant was given a chance to speak; while still professing his innocence, appellant, however,
made no mention of a desire to file post-verdict motions.
At the P.C.H.A. hearing, appellant testified that he had instructed counsel to file post-verdict motions and that counsel had agreed to do so. Further, appellant alleged that until the time of sentencing, he had not realized that the motions had not been filed. Trial counsel, on the other hand, testified that he and appellant had agreed not to file said motions. ...