Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1971, Nos. 1456 and 1457, in case of Commonwealth of Pennsylvania v. James Edward Danzy.
James Edward Danzy, appellant, in propria persona.
Romaine Phillips, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Hoffman, J. Jacobs, J., concurs in the result.
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Appellant contends that the lower court erred in denying his petition for relief under the Post Conviction Hearing Act.*fn1
Appellant was found guilty of burglary and aggravated robbery by a jury on January 12, 1972. The conviction was based on an incident that occurred on April 8, 1970. Appellant and two co-felons entered a Philadelphia bar; they then held up and pistol whipped the patrons and the proprietor. Appellant was sentenced to 10 to 20 years' imprisonment on each charge to run consecutively. Direct appeal was heard by our Court; judgment of sentence was affirmed. Commonwealth v. Danzy, 225 Pa. Superior Ct. 234, 310 A.2d 291 (1973) (opinion by Spaeth, J.).*fn2 Thereafter, appellant, represented by different counsel, filed a PCHA petition on May 23, 1974. Judge Doty granted leave to file a petition nunc pro tunc for allocatur to the Supreme Court, but denied his other claims because he believed that these issues were waived by reason of
[ 234 Pa. Super. Page 636]
appellant's failure to raise them on direct appeal. See PCHA, supra, 19 P.S. § 1180-3 (d).
Appellant contends, however, that his original counsel's failure to raise the claims now urged upon our Court amounted to ineffective assistance of counsel. If in fact appellant's contentions would have required a reversal if raised on direct appeal, then a fortiori, failure to raise those claims on appeal was ineffective assistance of counsel.*fn3 This conclusion is mandated by Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Obviously, if a defendant is convicted subsequent to a trial during which reversible error is committed and that error is never cured by a timely appeal, the defendant has been denied due process. Commonwealth v. Clair, supra, held that "any error that deprives a defendant of due process can more properly be remedied by a claim of ineffective assistance of counsel [than by invocation of the doctrine of basic and fundamental error]." 458 Pa. at 422, 326 A.2d at 274. Thus we must consider the merits of appellant's new contentions to decide whether his original counsel's failure to pursue them on direct appeal amounts to ineffective assistance of counsel.
Appellant first contends that it was error to sentence him on both bills of indictment because the two offenses merged. He cites the new Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 3502, whereunder "[a] person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarous entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree." (Emphasis added).
[ 234 Pa. Super. Page 637]
First, appellant committed his crime prior to the effective date of the new Code. Section 2 of the Act adopting the Code, supra, provides "Title 18 of the Consolidated Pennsylvania Statutes (relating to crimes and offenses), as added by this act, does not apply to offenses committed prior to the effective date of this act and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this act were not in force." Further, even under the new Code, robbery does not merge with burglary because robbery is a felony of the first degree. Crimes Code, supra, 18 Pa.C.S. § 3701. Nor under pre-Code law did the offenses of burglary and aggravated robbery merge. "'. . . The true test of whether one criminal offense has merged in another . . . is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. . . .'" Commonwealth v. Smith, 452 Pa. 1, 10, 304 A.2d 456, 461 (1973), citing Commonwealth ex rel. Moszczynski v. Ashe, ...