No. 764 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 2508-78
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Brosky and Eagen, JJ.*fn*
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William D. Young, appellant, was tried non-jury in the Court of Common Pleas of Montgomery County and convicted of retail theft third or subsequent offense and criminal conspiracy. After the verdict was rendered, the court advised Young of his rights regarding post-verdict motions. None were filed. At sentencing, defense counsel, who was privately retained, stated to the court that Young could no longer afford counsel; that Young had been unable to pay to have the record transcribed and, as a result, no post-verdict motions had been filed; and, that counsel wished to present oral motions to protect Young's appellate rights or, alternatively, wished a continuance so Young could obtain
[ 280 Pa. Super. Page 395]
court-appointed counsel. The court ruled the post-verdict motions were untimely and proceeded to impose a judgment of sentence of two to five years imprisonment. The court suspended the sentence on the other conviction. The court then advised Young of his appellate rights. The public defender undertook representation of Young and filed this appeal on his behalf.
Young argues that trial counsel was ineffective in not filing post-verdict motions challenging the sufficiency of the evidence to support the verdict. The trial court has filed an opinion in which it reasoned that, since Young was advised of his right to file post-verdict motions and of his right to free counsel if he could not afford counsel to file the motions and since Young made no request for counsel and filed no motions, he had waived his right to do so.
Since Young is represented on appeal for the first time by counsel other than trial counsel who is claimed to have been ineffective, the ineffectiveness issue is properly presented. Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978).
As noted before, Young argues*fn1 that counsel was ineffective for not preserving for review the claim that the evidence was insufficient to support the verdict. We must first
[ 280 Pa. Super. Page 396]
determine if the claim has arguable merit. Commonwealth v. Hubbard, 472 Pa. ...