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COMMONWEALTH v. EVANS (09/30/71)

decided: September 30, 1971.

COMMONWEALTH
v.
EVANS, APPELLANT



Appeals from orders of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1963, No. 95 and Oct. T., 1968, No. 17, in case of Commonwealth of Pennsylvania v. Nelson Evans.

COUNSEL

John J. Dean and J. Graham Sale, Jr., Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.

Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Per Curiam

[ 220 Pa. Super. Page 230]

Orders affirmed.

Disposition

Orders affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant was charged with auto larceny, armed robbery and assault and battery. On November 19, 1968, he pleaded not guilty and went to trial before a judge sitting without a jury.

After testimony had begun on the auto larceny charge, appellant's counsel announced, "[w]e're pleading guilty to this charge." Following a colloquy to establish appellant's understanding of his pleas, the trial continued as to the other charges.*fn1

The victim of the robbery testified concerning the offense. Defense counsel asked one question on cross-examination of this witness and concluded, "[t]hat's all. At this point we will enter a plea on this charge." The court cautioned counsel to consult with his client on this matter. Counsel was told the assault charge was still pending and answered, "I'm talking about the robbery charge. Let me see that indictment for a minute, if I may. All right, we'll wait."

Appellant was convicted as charged and sentenced to a term of five to ten years for the robbery and assault. Post-trial motions were not filed, but on June 3, 1969, appellant submitted a Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยง 1180-1 et seq., Supp. 1971, petition alleging that he had been denied his right to competent counsel. In support of this allegation appellant stated that he had first seen his attorney only twenty minutes before ...


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