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COMMONWEALTH v. BROWN (09/18/70)

decided: September 18, 1970.

COMMONWEALTH
v.
BROWN, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1960, Nos. 455 and 456, in case of Commonwealth of Pennsylvania v. William Brown.

COUNSEL

Alan J. Davis, with him Wolf, Block, Schorr and Solis-Cohen, for appellant.

Arthur R. Makadon, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins, and Jacobs, JJ., dissent.

Author: Hoffman

[ 217 Pa. Super. Page 191]

Appellant and his co-defendant were arrested and charged with two crimes, arising from two separate incidents: attempted robbery and assault and battery with intent to ravish. They appeared before a magistrate without counsel, where witnesses with respect to both crimes testified. With regard to the attempted robbery, both appellant and his co-defendant were clearly identified as the perpetrators. With regard to the assault and battery with intent to ravish, however, only the co-defendant was identified as one of two assailants. Appellant, in the words of the district attorney, "was not the other man." In fact, the victim clearly responded to the district attorney that "[t]hat is right. I never saw him."

At the conclusion of the magistrate's hearing, however, the notes indicate that both appellants were held "[w]ithout bail for Court," apparently on both charges. The magistrate's return, on the other hand, indicated that the co-defendant was held for both crimes, while appellant was held for only the attempted robbery. Whether appellant, in fact, was held for assault and battery, we cannot ascertain at this level.

Following these proceedings, both appellant and his co-defendant were indicted at No. 456 April Term, 1960, for assault and battery. At their joint trial on both charges, the co-defendant appeared with counsel, but appellant had none. The trial judge appointed the voluntary defender on the spot. Unaware of the prior proceedings in the case, appellant's newly-appointed attorney

[ 217 Pa. Super. Page 192]

    failed either to move to quash the indictment charging assault and battery or to continue the trial pending transcription of the magistrate's notes. Instead he proceeded to trial, during the course of which he vigorously cross-examined the prosecutrix. This time, she identified appellant as one of her assailants. At no time did the district attorney, counsel, or the prosecutrix herself indicate that she had previously failed to identify appellant. She left the stand, unshaken and unimpeached.

Both appellant and his co-defendant were convicted of the two charges against them. Appellant was sentenced to one to three years on the assault and battery, to follow a two to six year sentence on the attempted robbery. No post-trial motions were filed.

Subsequently, appellant filed a petition under the Post Conviction Hearing Act, alleging that he was denied effective assistance of counsel and that he did not competently and intelligently waive the right to appeal. Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยง 1180-1 et seq. (Supp. 1970). Following a hearing, his petition was denied. He appealed that denial to this Court, which affirmed. 213 Pa. Superior Ct. 771, 247 A.2d 245 (1968). On appeal to the Supreme Court, the Court in a Per Curiam opinion reversed this Court and "remanded to the court of original jurisdiction to give the appellant the opportunity of filing post-trial motions nunc pro tunc and the opportunity to appeal if an adverse decision is entered." 434 Pa. 356, 357-358, 252 A.2d 677, 678 (1969). The Court faced that one issue and that one issue alone in granting relief.

Pursuant to the order of the Supreme Court, appellant filed post-trial motions nunc pro tunc, alleging that the indictment against him was invalid. The trial court ...


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