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COMMONWEALTH v. JOHNSON (03/21/68)

decided: March 21, 1968.

COMMONWEALTH
v.
JOHNSON, APPELLANT



Appeal from order of Court of Quarter Sessions of Philadelphia County, June T., 1964, Nos. 1249 and 1250, in case of Commonwealth of Pennsylvania v. Thomas J. Johnson.

COUNSEL

Thomas J. Johnson, appellant, in propria persona.

Robert M. Borden and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J. Wright, P. J., and Montgomery, J., would affirm the order of Judge Reimel.

Author: Spaulding

[ 212 Pa. Super. Page 160]

Appellant, utilizing the procedure established by the Post Conviction Hearing Act,*fn1 contests two separate 1964 burglary convictions, averring as grounds for relief (1) ineffectiveness of counsel in permitting amendment of indictments without first obtaining the consent of petitioner; (2) guilty plea entered without knowledge as to its consequences; and (3) failure of trial counsel to advise him of his absolute right to appeal.

In July, 1964 appellant entered a plea of not guilty on the first of two indictments*fn2 in the Quarter Sessions Court of Philadelphia. He was adjudged guilty by Judge Kelley, sitting without a jury, and sentenced to not less than 2 nor more than 5 years imprisonment. Two months later he appeared before Judge Troutman on the second indictment,*fn3 pleaded guilty and received another 2 to 5 year sentence to run concurrently with the first commitment. No direct appeal was taken on either action.

Appellant's first collateral proceeding was a pro se habeas corpus petition filed in 1965 which attacked only the propriety of the amendments to the bills of indictment. Judge McClanaghan of the court below dismissed the petition and this court affirmed per curiam, Commonwealth ex rel. Johnson v. Myers, 207 Pa. Superior Ct. 770, 218 A.2d 828 (1966). Allocatur was denied on July 25, 1966.

Another pro se habeas corpus petition was dismissed by the Federal District Court on May 31, 1967.*fn4

[ 212 Pa. Super. Page 161]

The instant petition was filed in September, 1967 and a hearing was held approximately one month later. Relief was denied and this appeal followed.

Appellant alleges first that counsel's permission given the District Attorney to amend a faulty indictment without consulting appellant constitutes ground for a finding of ineffectiveness of counsel. This contention is without merit. As stated by the Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), the "inquiry [into an allegation of counsel incompetence] ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record." Id., 427 Pa., at 604. (Emphasis in original.) In the instant case the course chosen by counsel was a reasonable one in serving his client for, as he testified at the evidentiary hearing below, a refusal to accede to the District Attorney's request to permit the amendment would have succeeded only in postponing the trial while another indictment was secured.

Appellant next attacks his guilty plea, alleging that he was not informed as to the consequences of such a plea. At the hearing below, however, ...


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