Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, Nos. 33 and 34, in case of Commonwealth of Pennsylvania v. Charles Robinson, a/k/a Michael C. Jones.
Louis S. Cali, for appellant.
Howell Rosenberg, 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.
[ 232 Pa. Super. Page 330]
Appellant, Michael Craig Jones, also known as Charles T. Robinson, was arrested on February 4, 1972, and charged with burglary and resisting arrest. A judge sitting without a jury found appellant guilty as charged, and sentenced appellant on April 27, 1972 to one to five years on the burglary conviction, suspending sentence on the conviction for resisting arrest. We affirmed the decision of the lower court at 225 Pa. Superior Ct. 727, 307 A.2d 324 (1973), and appellant filed a petition under the Post Conviction Hearing Act, alleging ineffective assistance of counsel. The case is before us on appellant's appeal from the refusal of the lower court, after a PCHA hearing, to grant him relief. We affirm the order of May 16, 1974, denying appellant's petition.
Appellant raises three arguments in his appeal:
(1) That he was deprived of his right to a fair trial by not being informed of the date of his trial until the morning of the trial itself;
(2) That he was denied the right to a fair trial in being prevented from presenting alibi witnesses; and
(3) That he was denied the right to effective representation by counsel. Appellant's first two arguments should have been raised on his direct appeal from the judgment of sentence, and cannot now be raised for the first time, 19 P.S. § 1180-4; Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); furthermore, appellant did not even raise these issues in his Petition Under Post Conviction Hearing Act. The only way that this Court will consider these two issues then, is in relation to appellant's third argument (the only one presented in his PCHA petition), that he was ineffectively represented by counsel.
Appellant testified at the PCHA hearing that he had talked with his trial attorney for only five or ten minutes
[ 232 Pa. Super. Page 331]
immediately before the trial; however, it has often been held that mere shortness of time for a defendant to confer with his counsel before trial does not constitute ineffective assistance of counsel. Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970); Commonwealth v. Berry, 440 Pa. 154, 269 A.2d 921 (1970). Appellant also testified that he had, immediately before the trial, informed his attorney that he had been unaware that the trial on the burglary and resisting arrest charges was set for that morning; also that he had informed the attorney of witnesses that could be called to show his "whereabouts" at the time of the burglary. At the PCHA hearing, the Commonwealth, in order to rebut appellant's allegations, called the attorney who had represented appellant at the trial. The attorney testified that he had no independent recollection of the case, but he also testified that, according to his usual practice, he would ...