No. 1671 October Term, 1978, Appeal from Order of the Court of Common Pleas of Bucks County, Criminal Division, at No. 1163-10/1972.
Adrian L. Meyer, Doylestown, for appellant.
Kenneth G. Biehn, District Attorney, Doylestown, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 280 Pa. Super. Page 310]
Appellant, Percy T. Johnson, takes this appeal from the lower court's denial of his Post Conviction Hearing Act (PCHA)*fn1 petition. Appellant argues, inter alia, that his trial counsel was ineffective for failing to properly and timely file post-trial motions subsequent to appellant's conviction of armed robbery on October 21, 1972. Appellant asks this court to allow him to file post-trial motions nunc pro tunc. Appellant's argument is meritorious; therefore, we reverse the decision of the lower court and order that appellant be allowed to file post-trial motions nunc pro tunc on his armed robbery conviction.
[ 280 Pa. Super. Page 311]
At the outset, it must be noted that the procedural history in the instant case is far from clear. But after careful study of the record, we traced the following. On October 16, 1972, appellant was brought to trial in Bucks County on two separate indictments-one charging, principally, armed robbery,*fn2 the other charging appellant with murder*fn3 and related offenses. The jury returned with a guilty verdict on the armed robbery charge, but the jurors were unable to reach a verdict on the murder indictment. As was provided by Pa.R.Crim.P. 1120(e),*fn4 the court therefore accepted the jury's verdict on the armed robbery charge and granted a mistrial on the murder charge. Upon retrial, appellant was convicted on December 8, 1972 of murder. Subsequently, on December 13, 1972, motions in arrest of judgment and for a new trial were "clocked in" at the district attorney's office, and herein lies the dispute. Two sets of motions were sent to the district attorney's office-one for the armed robbery conviction and one for the murder conviction. However, for some unexplained reason, only the post-trial motions for the murder were filed and docketed with the Clerk of Quarter Sessions. In the latter motions, defense counsel challenged the selection and array of jurors in Bucks County, an issue that was initially raised prior to appellant's first trial (the armed robbery conviction). The lower court ruled on appellant's post-trial motions in Commonwealth v. Johnson, 24 Bucks Co.L.Rep. 326 (1973); however, it is apparent from the court's opinion that the motions pertaining to appellant's armed robbery convictions were not before the court, for the court said,
[ 280 Pa. Super. Page 312]
"Defendant filed no post-trial motions at the conclusion of the first trial but at the conclusion of the second trial did file motions as in the nature of motions in arrest of judgment and for a new trial. Therefore, we perceive that defendant takes no issue with the verdict of guilty as entered and recorded as the result of the first trial but only with the verdict of guilty of murder in the first degree resulting from the second trial. Defendant's motions have been briefed and argued before the court en banc and we decide them herein." 24 Bucks Co.L.Rep. at 327.
The decision of the trial court was affirmed by the Supreme Court in Commonwealth v. Johnson, 460 Pa. 493, 333 A.2d 881 (1975). In its opinion, the Supreme Court mentioned appellant's armed robbery conviction only as one fact of the procedural history of appellant's murder conviction.*fn5 The Court gave no indication that the Court had before it post-trial motions for appellant's armed robbery conviction.
Subsequently, on August 23, 1977, appellant filed on his own behalf the herewithin PCHA petition. Counsel was appointed to represent appellant in this action and, on March 31, 1978, a hearing was held concerning the petition. Then, a few days later, on April 4, 1978, appellant's post-trial motions on his armed robbery conviction, the same legal papers which were "clocked in" at the district attorney's office on December 13, 1972, were marked "received" by the Bucks County Clerk of Courts office and docketed-nearly five and one-half years after these motions were sent to the district attorney's office. Three weeks later, on April 28, 1978 the lower court denied ...