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COMMONWEALTH v. OWENS (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
OWENS, APPELLANT



Appeal from order of Superior Court, April T., 1972, No. 260, affirming order of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1966, Nos. 21 and 71, and April T., 1966, No. 19, in case of Commonwealth of Pennsylvania v. James E. Owens.

COUNSEL

John R. Cook and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.

Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 454 Pa. Page 269]

Appellant James E. Owens claims he was denied his constitutional right to effective assistance of counsel

[ 454 Pa. Page 270]

    because his privately-retained attorney did not sufficiently consult with him pretrial, and because counsel failed at trial to call as witnesses two friends of appellant, who he asserts could have possibly exculpated him from one of three armed robbery convictions. We conclude that the record does not support appellant's claim; we affirm.

[ 454 Pa. Page 271]

Appellant on June 24, 1966, was tried non-jury for a series of armed robberies and found guilty.*fn1 The trial court sentenced him to undergo consecutive terms of imprisonment of three to twenty years on each of three indictments. A timely motion for a new trial was filed and after argument denied. An appeal was taken to the Superior Court which in a per curiam opinionless order affirmed the judgment of sentence. Commonwealth v. Owens, 209 Pa. Superior Ct. 714, 224 A.2d 653 (1966). Appellant commenced the present collateral proceeding on July 11, 1969, by filing a petition pursuant to the Post Conviction Hearing Act. Act of January 25, 1966, P. L. (1965) 1580, §§ 1-14, 19 P.S. §§ 1180-1 to -14 (Supp. 1973). After an evidentiary hearing the petition was dismissed. The Superior Court without opinion affirmed per curiam. Commonwealth Page 271} v. Owens, 223 Pa. Superior Ct. 756, 299 A.2d 334 (1973). We limited our grant of allocatur to the question whether appellant was afforded effective assistance of counsel.

Since this Court's decision in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), we have often repeated that mere shortness of time spent in conference with a client does not per se establish ineffective assistance of counsel.*fn2 E.g., Commonwealth v. Hill, 450 Pa. 477, 481 & n.4, 301 A.2d 587, 590 & n.4 (1973); Commonwealth v. Skipper, 440 Pa. 576, 271 A.2d 476 (1970); Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970); Commonwealth v. Berry, 440 Pa. 154, 269 A.2d 921 (1970); Commonwealth ex rel. Johnson v. Russell, 428 Pa. 440, 239 A.2d 399 (1968). Consistent with our view is the United States Supreme Court's refusal "to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel . . . ." Chambers v. Maroney, 399 U.S. 42, 54, 90 S. Ct. 1975, 1982-83 (1970).

To find a deprivation of the constitutional right to effective assistance of counsel,*fn ...


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