Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1972, Nos. 174 and 175, in case of Commonwealth of Pennsylvania v. James Grove.
Richard H. Knox, for appellant.
Maxine J. Stotland, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J.
[ 229 Pa. Super. Page 294]
The Appellant, James Grove, after a trial before a jury, was convicted of the crimes of aggravated robbery and burglary. The prosecution arose out of an armed holdup of a bartender by three individuals, at a Philadelphia tavern in 1971. Following his conviction and post-trial motions, the Appellant filed a direct appeal to our Court, in which, inter alia, he challenged the lower court's refusal before trial, to appoint private counsel to represent him, rather than the Public Defender, in whom the Appellant claimed he lacked confidence. Appellant was also denied a continuance which he sought in order to procure other counsel. The lower court had noted, at the time of post-trial motions, that arguments based on claims of ineffective counsel would more appropriately be raised in a Petition under the Post Conviction Hearing Act. On the direct appeal, we affirmed the conviction in a per curiam Order dated May 13, 1973. See Commonwealth v. Grove, 225 Pa. Superior Ct. 720, 306 A.2d 380 (1973).
[ 229 Pa. Super. Page 295]
The present appeal is from the denial of Appellant's Petition, under the Post Conviction Hearing Act (hereinafter referred to as the PCHA); a hearing was held in this matter by the court below. At the hearing, the only testimony was that offered by the Appellant, Grove. He testified that he felt his trial counsel was ineffective for several reasons. Particularly, he related that he had advised his attorney, at the time of trial, that the bartender, who appeared as a witness against Grove at trial, had a prior criminal record. According to Grove, his trial counsel answered that he had called someone to find out about this matter, and had been advised that the bartender had no criminal record. Thus, Grove testified, his trial counsel refused his requests to cross-examine the witness on the matter of a prior record. Our review of the trial transcript supports the testimony of Grove in this latter particular.
The PCHA Court, without discrediting Grove, and noting that the trial court, in its opinion, had commented favorably on the representation of Grove, held that its own review of the record found the trial representation to be effective. Thus the PCHA Petition was dismissed. We are constrained to disagree with this disposition of the case by the learned court below.
In addition to the resume of the Appellant's testimony, as related above, other evidence was presented to the PCHA Court. That evidence consisted of proof that the bartender who testified against Grove, and identified him, did in fact have a substantial criminal record which included convictions for manslaughter and armed robbery. The transcript of the trial revealed further that the sole witness placing the Appellant at the site of the armed robbery was the bartender. The only other witnesses for the Commonwealth at trial were two police officers who testified about:
(1) The description of the three armed robbers offered by the bartender shortly after the crime, and
[ 229 Pa. Super. Page 296]
(2) The identification by the bartender of the Appellant at a lineup over one month after the robbery. It might be noted that no evidence was offered as to the ...