Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1968, No. 1318, in case of Commonwealth of Pennsylvania v. Cyrano D. Coleman.
Thomas F. Gilson, and Halbert, Kanter, Hirschhorn & Gilson, for appellant.
James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Spaulding, J.
[ 218 Pa. Super. Page 85]
Dissenting Opinion by Spaulding, J.:
Appellant, Cyrano D. Coleman, alleges that he was denied effective representation of counsel at his April 18, 1968 non-jury trial in the Court of Common Pleas of Philadelphia County. Appellant was convicted of assault and battery, aggravated assault and battery, and assault with intent to kill. His original sentence of 3 1/2 to 7 years imprisonment was reduced to 1 to 5 years following investigation and neuropsychiatric examination. This appeal is from denial of his post-conviction petition after a hearing.
At the beginning of appellant's trial, his counsel, a Public Defender, moved for a continuance, since some subpoenaed alibi witnesses had failed to appear, and he had been unable to contact other alibi witnesses. The court denied the motion for the stated reason that notice of the defense of alibi had not been filed as required by Rule 312 of the Rules of Criminal Procedure. Counsel's responses indicated that he had assumed someone else within the Defender office had filed the notice. From counsel's trial statements and hearing testimony, it appears that the Defender Association had been appointed ten days before trial, and someone other than counsel had interviewed appellant and elicited a list ...