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COMMONWEALTH PENNSYLVANIA v. JOHNNIE B. COOK (09/09/88)

filed: September 9, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHNNIE B. COOK, A/K/A EUGENE THOMAS, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division of Philadelphia County, No. 70 July Term, 1984.

COUNSEL

George T. Guarnieri, Philadelphia, for appellant.

Joan Weiner, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, McEwen and Beck, JJ. Beck, J., concurs in the result.

Author: Wieand

[ 377 Pa. Super. Page 358]

Johnnie B. Cook a/k/a Eugene Thomas was tried without jury pursuant to an agreed statement of the evidence and

[ 377 Pa. Super. Page 359]

    was found guilty of criminal trespass*fn1 and theft by unlawful taking.*fn2 He did not file post-trial motions. He was sentenced to serve a term of imprisonment for not less than two and one-half years nor more than five years for criminal trespass, and sentence was suspended on the conviction for theft by unlawful taking.*fn3 A written motion to modify the sentence was denied, and Cook filed a direct appeal from the judgment of sentence. When defense counsel failed to file a brief, however, the appeal was dismissed without prejudice to his right to proceed under the Post Conviction Hearing Act.*fn4 Upon the filing of a P.C.H.A. petition, the Commonwealth stipulated that an appeal should be allowed nunc pro tunc. The trial court entered an order allowing an appeal nunc pro tunc, and this appeal followed.

Our review, in view of appellant's prolix brief, will be limited to the issues which he has framed in his statement of questions involved. These are as follows: (1) the sufficiency of the evidence to sustain the conviction for criminal trespass; (2) the adequacy of the jury-waiver colloquy; (3) the alleged ineffectiveness of trial counsel; and (4) the alleged excessiveness of the sentence.

Because post-trial motions were not filed, the alleged insufficiency of the evidence to sustain the finding that appellant committed criminal trespass has been waived. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Pa.R.Crim.P. 1123(c)(3). Appellant seems to believe that he can avoid the effect of his failure to file such post-trial motions by breathing the magic words that counsel was ineffective for failing to file the same. We have read his brief carefully and have been unable to find any suggestion that counsel was instructed to file post-trial motions and either refused or failed to follow appellant's

[ 377 Pa. Super. Page 360]

    instructions. The trial court had specifically advised appellant of his right to file post-trial motions and the time within which they had to be filed, but neither the record nor appellant's brief in this Court suggests that appellant acted on that information. In the absence of a request to file post-trial motions, counsel will not be deemed ineffective for failing to file the same. Counsel is not required to file post-trial motions in all cases. Because appellant has failed to aver facts which, if true, would have rendered counsel ineffective for failing to file post-trial motions, and because he has failed to aver any other extraordinary circumstances that would prevent his failure to file post-trial motions from acting as a waiver of trial issues, the issue of the alleged insufficiency of the evidence will be deemed waived.

Appellant's argument, moreover, is lacking in merit. At trial, the parties stipulated that the assistant manager of Woodland Shoppers World, if called, would have testified that on June 19, 1984 she heard a noise in the stockroom. This room was open only to employees of the store and not to members of the public. The door to the room had been closed, and had been held in a closed position by an unlocked padlock. Thus, the door could be opened by lifting the padlock and removing it. When the assistant manager entered the stockroom, she saw appellant folding a bag. A security officer was summoned, and, upon examining ...


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