Appeal from order of Court of Quarter Sessions of Philadelphia County, Feb. T., 1954, Nos. 12 to 17, inclusive, and 1368 to 1374, inclusive, in case of Commonwealth of Pennsylvania v. John Grandy.
Bennett G. Picker, and Tate and Ervin, for appellant.
Michael J. Rotko, Assistant District Attorney, and Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hoffman, J.
[ 212 Pa. Super. Page 439]
Petitioner pleaded guilty on April 29, 1954, to four indictments charging aggravated robbery. He was sentenced to a term of not less than five nor more than ten years, on each bill, the sentences to run consecutively.
On June 9, 1967, petitioner filed a petition under the Post Conviction Hearing Act, in which he alleged that he was deprived of his right to effective assistance
[ 212 Pa. Super. Page 440]
of counsel and that his sentence constituted illegal double punishment.
A hearing was held on August 15, 1967, at which petitioner was represented by counsel. The petition was denied, and from that denial, this appeal followed.
Petitioner contends that proof of shortness of consultation with counsel is sufficient to support a finding of lack of effective representation. Counsel was appointed by the trial court to represent petitioner the day of the proceedings. Counsel had represented petitioner in a previous matter before the court. After a side bar conference, counsel spoke with petitioner for a short time. Petitioner testified that counsel told him: "I see you signed a confession and entered a guilty plea and therefore there's nothing I can do." He further testified that counsel never asked him about his involvement in the case or the confession.
Petitioner was the only one to testify at the hearing. The Commonwealth chose not to call petitioner's trial counsel or any other witnesses. Petitioner's counsel chose not to call trial counsel to corroborate petitioner's allegations.
Petitioner contends that once he has testified to facts which, if believed, would constitute the basis for a finding that trial counsel was ineffective, the burden of proof shifts to the Commonwealth to rebut his testimony. This contention was made and specifically rejected by the Supreme Court in Commonwealth v. Grays, 428 Pa. 109, 237 A.2d 198 (1968). In that case, quoting from Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), the Court stated: "'As with other assertions of a denial of constitutional rights in post-conviction proceedings, the burden ...