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decided: September 18, 1970.


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.


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 denied the motions and this appeal followed.

In appellant's post-conviction petition, he alleged counsel was ineffective because he failed to move to

[ 217 Pa. Super. Page 193]

    quash the indictment charging assault and battery. In appellant's post-trial motions, he alleged the indictment was invalid because he was not held by the magistrate for the assault and battery. Underlying both contentions is one outstanding factor: no lawyer was available to act on appellant's behalf until trial. Accordingly, the question we face is whether reversible error was committed because appellant was not represented by counsel from the time of his preliminary hearing until time of trial.*fn1

In Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970), the Supreme Court held that a preliminary

[ 217 Pa. Super. Page 194]

    hearing is a "critical stage" of a state's*fn2 criminal proceeding, at which the assistance of counsel is required in order to protect the fairness of the subsequent trial.*fn3 In deciding the retroactivity of Coleman we will be guided by another assistance-of-counsel case, Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967). Stovall indicated that "[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a 'question of probabilities.' . . . Such probabilities must in turn be weighed against the prior justified reliance upon the old standards and the impact of retroactivity upon the administration of justice." Id. at 298, 87 S. Ct. at 1970.

The probability that the truth-determining process was affected by the lack of counsel at preliminary hearings is minimal in the vast majority of cases. Most witnesses' stories at the preliminary hearings remain the same at trial. Testimony favorable to the accused is usually not available at the preliminary stage of the proceeding for counsel to preserve. Discovery

[ 217 Pa. Super. Page 195]

    is also unlikely at such an early stage of the proceedings, since the Commonwealth has always been very reluctant to open its case much before trial. In addition, although foreshadowed, it was not until the Supreme Court decided Coleman that the presence of counsel was required at preliminary hearings. Cf. DeSist v. United States, 394 U.S. 244, 89 S. Ct. 1030 (1969). Moreover, the Pennsylvania Supreme Court had continually indicated that preliminary hearings were not a "critical stage" of a criminal proceeding and that lack of counsel could therefore "form no grounds for complaint." Commonwealth v. Dews, 429 Pa. 555, 239 A.2d 382 (1968). Law enforcement officials generally and legitimately relied on what was the pre- Coleman rule. In light of these factors, we can only conclude that Coleman will not be applied retroactively,*fn4 and we so hold.

Despite our holding with respect to Coleman's retroactivity, appellant is entitled to a review of whether counsel's absence potentially created such substantial prejudice as to warrant reversal. See Stovall v. Denno, supra at 301-302, 87 S. Ct. at 1972-1973. It is evident from the record that had appellant been represented from the time of his preliminary hearing, counsel would have been aware of the fact that the prosecutrix had failed to identify appellant at the preliminary hearing. He could then have done several things. He might have moved to quash appellant's indictment on assault and

[ 217 Pa. Super. Page 196]

    battery. An appropriate inquiry could then have been made to determine what action the magistrate, in fact, took. The magistrate's action notwithstanding, at trial, counsel might have cross-examined the prosecutrix with regard to her prior statements. She then might not have left the stand unshaken and unimpeached. What result either action by counsel would have had, we cannot tell at this juncture. Potentially, however, appellant was substantially prejudiced by counsel's failure to do either.

Accordingly, we vacate judgment of sentence and remand the record for a new trial and other proceedings consistent with this opinion.


Judgment of sentence vacated and record remanded.

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