Opinion
June 10, 1974.
December 11, 1974.
Criminal Law — Practice — Post Conviction Hearing Act — Alleged ineffective assistance of counsel — Issue not raised in court below.
1. An evidentiary hearing pursuant to the Post Conviction Hearing Act is the proper forum for raising an ineffective counsel argument so that the Commonwealth may have an opportunity to show that the representation was effective.
Constitutional Law — Sixth Amendment to United States Constitution — Right to confrontation of witnesses against defendant — Confession by co-defendant — Later guilty plea by co-defendant — Lack of prejudice to defendant.
2. It was Held that defendant's contention that a confession of a co-defendant, testified to at defendant's trial by a police officer, was a violation of the defendant's Sixth Amendment right to confrontation, was without merit.
3. When the co-defendant co-conspirator, who makes a confession which is offered at the trial, takes the stand and is subjected to full cross-examination, there is no violation of a defendant's right to confront those who accuse him.
4. Defendant's contention that he was prejudiced by the co-defendant's later guilty plea was Held to be without merit where the guilty plea was taken outside of the presence of the jury trying the defendant.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 52, Oct. T., 1974, from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1966, Nos. 612, 614, 615 and 616, in case of Commonwealth of Pennsylvania v. Charles Thomas Howard. Order affirmed.
Petition for post-conviction relief. Before DOTY, A.J.
Order entered dismissing petition. Defendant appealed.
Michael J. Stack, Jr., and O'Halloran, Stack Smith, for appellant.
David Richman, James A. Shellenberger, Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Submitted June 10, 1974.
On January 16, 1967, appellant was tried by a jury upon charges of assault and battery, attempted rape, and resisting an officer. The verdict was guilty on all counts. Timely motions for a new trial and in arrest of judgment were filed and denied. On November 27, 1967, sentence was rendered by the trial Judge DOTY. Appellant directly appealed to our Court on December 21, 1967, and we affirmed judgment of sentence at 212 Pa. Super. 723, 241 A.2d 357 (1968). On March 13, 1973, appellant filed a petition with the trial court pursuant to the "Post Conviction Hearing Act." Hearing before Judge DOTY was had on October 2, 1973, after which appellant's petition was denied. Appellant is now before us on an appeal from this denial of his petition for post-conviction relief.
Act of 1966, Jan. 25, P.L. (1965) 1580 (19 P. S. § 1180-1 et seq.)
Appellant's first argument is that he was denied effective counsel. An attorney from the Philadelphia Voluntary Defender had been appointed as counsel for Howard and for one of two co-defendants. Howard had been reluctant to talk with this counsel because he was under the misapprehension that private counsel had been retained for him. He now alleges that this counsel first met with him on the morning of the trial, that the Voluntary Defender's office was unfamiliar with his case even though it had maintained a file on the subject, and that his counsel was thus not afforded sufficient time to become an effective advocate for appellant.
In the lower court the case was captioned Commonwealth v. Wilkinson, Devore, and Howard. Private counsel represented Devore. Thomas Kellogg, Esq., represented Wilkinson and Howard in the first instance, but Wilkinson's case was severed from Howard's trial prior to its commencement.
There is no allegation of specific in-court ineffectiveness of counsel.
In our deliberations we are guided by Commonwealth v. Benjamin, 219 Pa. Super. 344, 280 A.2d 625 (1971), for the priniciple that an evidentiary hearing pursuant to the "Post Conviction Hearing Act," supra, is the proper forum for raising an ineffective counsel argument so that the Commonwealth may have an opportunity to show that the representation was effective under the standards enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). We have carefully studied the record from the June 19, 1973, "PCHA" hearing and conclude that there is ample testimony from trial counsel to show that a file had been maintained on appellant and that the same was available for trial preparation at all times. If the file was in any way deficient because appellant had from time to time refused to speak with his counsel, appellant cannot claim that a lack of preparation caused by his own conduct entitles him to relief based upon ineffectiveness of counsel resulting from such lack of preparation. We find ample evidence to support the opinion of Judge DOTY in denying appellant's post-conviction petition on the basis of the alleged ineffectiveness of counsel.
Appellant next argues that a confession of the remaining co-defendant Devore, testified to at the trial by a police officer, was a violation of appellant's Sixth Amendment right to confrontation. Appellant's reliance on Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), is inappropriate. As we held in Commonwealth v. Hirsch, 225 Pa. Super. 494, 311 A.2d 679 (1974), when the co-defendant co-conspirator who makes a confession which is offered at the trial, takes the stand and is subjected to full cross-examination, there is no violation of the defendant's right to confront those who accuse him. We recognize that the cross-examination in the instant case came about after the co-defendant changed his plea to guilty and testified. But it is clear from the record that appellant made full use of his right to cross-examine the defendant, Devore.
In Bruton, supra, the United States Supreme Court found the admission of a confession by a co-defendant to be prejudicial to the other defendant's Sixth Amendment right of confrontation when said co-defendant was not available for cross-examination.
The appellant's further contention that the alleged prejudice was compounded by the co-defendant's later guilty plea, as appellant argues, is not persuasive. The recent case of Commonwealth v. Geho, 223 Pa. Super. 525, 302 A.2d 463 (1973) so held. Here the trial judge found specifically that there was no prejudice in this respect and stated that "[w]e might also add that Devore's guilty plea was taken outside of the presence of the jury and any facts and statements in connection with that guilty plea were not heard by the jury trying the petitioner [appellant]." There was ample evidence adduced at the PCHA hearing to support the finding and statement of the hearing judge.
Appellant's third argument, that the reception of co-defendant's guilty plea in front of the jury is grounds for withdrawal of a juror, cannot be considered again because it was fully and finally litigated in appellant's 1967 direct appeal to this Court. The "Post Conviction Hearing Act," supra, section 4(a)(2); Commonwealth v. Conard, 212 Pa. Super. 133, 240 A.2d 388 (1968); Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973).
Order affirmed.