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COMMONWEALTH v. MCCOY (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
MCCOY, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, Nos. 1082, 1083, and 1084, in case of Commonwealth of Pennsylvania v. Sterling McCoy.

COUNSEL

Brian E. Appel, Louis M. Natali, Jr., and Segal, Appel & Natali, for appellant.

David Richman, William C. Turnoff, 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 Spaeth, J.

Author: Spaeth

[ 232 Pa. Super. Page 478]

This is an appeal from denial of relief under the Post Conviction Hearing Act, Act of Jan. 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1974-75).

On October 6, 1969, appellant went to trial with a co-defendant, Ollie Johnson, on charges of carrying a concealed deadly weapon, assault and battery, aggravated assault and battery, assault and battery with intent to kill, and aggravated robbery. Six jurors were selected the first day. The next day, however, Johnson failed to appear. His attorney immediately moved for a mistrial, but the motion was denied. Appellant asked his attorney also to move for a mistrial, but the attorney did not. Shortly thereafter selection of the jury was completed.

The Commonwealth's evidence tended to show that on August 16, 1968, appellant and Johnson entered a bar shortly before closing time. The only persons present were the night bartender and his nephew. Johnson pointed a revolver at the bartender and announced a stick-up. The bartender grabbed the revolver and began struggling with Johnson, who called for help. Appellant darted from the men's room and fired a sawed-off shotgun at the bartender. The bartender, sprayed by the pellets, fell to the floor. Johnson slapped the bartender, grabbed his wallet, and ran outside. Appellant forced the bartender to get up and open the cash register. At this point the police entered the bar and arrested appellant; they had already arrested Johnson outside. The shotgun was found inside the bar. The bartender and his nephew both identified the appellant.

[ 232 Pa. Super. Page 479]

At the conclusion of the Commonwealth's case, appellant's attorney moved for a mistrial on the ground that Johnson had been subpoenaed before trial as a defense witness but was not available to testify. The motion was denied. Appellant testified on his own behalf that he went into the bar to use the men's room, fell asleep inside, and when he emerged to investigate the noise, was surrounded by police.

The jury found appellant guilty of all charges, and after post-trial motions were denied, appellant was sentenced to 7 1/2 to 15 years for aggravated robbery, the sentences on the other charges being suspended.*fn1 This court affirmed per curiam. Commonwealth v. McCoy, 219 Pa. Superior Ct. 298, 279 A.2d 237 (1971), allocatur refused, 219 Pa. Superior Ct. xxxvii. A petition for writ of habeas corpus was denied by the United States District Court for the Eastern District of Pennsylvania. United States ex rel. Sterling McCoy v. Robert Johnson, Superintendent, Civil Action No. 71-2968. The present PCHA petition was filed on February 5, 1973. The court below held a hearing but denied relief. This appeal followed.

Appellant's sole contention is that he was denied his constitutional right to effective counsel. He submits that his attorney's decision not to move for mistrial as soon as Johnson disappeared was inexcusable error because Johnson's flight in the face of criminal charges must have pre-disposed the jurors to believe appellant guilty.

The Sixth Amendment guarantees an accused in all criminal prosecutions the right to the assistance of counsel. Gideon v. ...


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