Appeal from the Judgment of Sentence March 4, 1987 in the Court of Common Pleas of Lycoming County, Criminal Division, No. 86-10, 322.
Nancy L. Butts, Williamsport, for appellant.
Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
Wieand, Tamilia and Cercone, JJ.
[ 371 Pa. Super. Page 43]
In this direct appeal, appellant raises a single claim, that is, whether trial counsel was ineffective for failing to file post-verdict motions on his behalf. Had counsel done so, appellant argues, two trial issues would now be ripe for appellate review. They are: (1) whether the Commonwealth used its peremptory challenges at jury selection in a racially motivated manner, and (2) whether trial counsel was ineffective for failing to attempt to impeach the victim's credibility as to her character and prior mental health history. For the reasons set forth herein, we are compelled to remand this case for a hearing on appellant's allegations.
Appellant was convicted of rape, robbery, simple assault, and indecent assault on October 23, 1986. Appellant alleges that he requested trial counsel to file post-verdict motions but the record shows that none were timely filed.
[ 371 Pa. Super. Page 44]
On December 17, 1986, new counsel for appellant filed Post Verdict Motions Nunc Pro Tunc without first requesting leave of court to file the motions out of time. By order of February 4, 1987, the court denied the post-verdict motions because they were filed out of time*fn1 and imposed sentence. Counsel then filed a Motion to Reconsider Sentence which the court granted and, on March 5, 1987, the court imposed an amended sentence. In this direct appeal, appellant requests this court to remand the case with instructions for the filing and disposition of post trial motions nunc pro tunc.
The standard for reviewing a claim of ineffectiveness of trial counsel has been well stated:
When confronted with a claim of ineffectiveness assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). There is a presumption in law that counsel is effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). The standard governing ineffectiveness
[ 371 Pa. Super. Page 45]
claims was set forth by this Court in Commonwealth ex rel. Washington v. Maroney, 427 ...