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COMMONWEALTH v. DRUMMOND (02/02/76)

decided: February 2, 1976.

COMMONWEALTH
v.
DRUMMOND, APPELLANT. (NO. 1); COMMONWEALTH V. DRUMMOND, APPELLANT (NO. 2)



Appeals from judgment of sentence and order of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1972, No. 872, in case of Commonwealth of Pennsylvania v. Lawrence Drummond.

COUNSEL

Richard J. Conn, for appellant at Nos. 1140 and 1141.

Barry H. Oxenburg, Assistant District Attorney, with him Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee at No. 1140.

Barry H. Oxenburg, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee at No. 1141.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Price, J., concurs in the result.

Author: Hoffman

[ 238 Pa. Super. Page 313]

Appellant is before this Court on two separate appeals. In his two briefs, appellant raises eight issues. Due to the peculiar procedural posture of this case, however, we are precluded from reaching the merits.

The appellant was arrested shortly after an armed robbery of a taxi cab driver in the 2700 block of Croskey Street, Philadelphia, at about 11:00 p.m., on June 1, 1972. The arrest was the product of a tip given to police by three girls who observed appellant and two accomplices running from the scene of the crime into the home of one of the accomplices at 2716 Hemberger Street. Police conducted a warrantless search of the Hemberger Street premises that netted the proceeds of the robbery. During the early morning hours of June 2, a few hours after the arrest, appellant made an inculpatory oral statement. This statement was subsequently reduced to writing and signed by appellant.

Counsel for appellant filed a motion to suppress both the physical evidence seized by the police and the statement given by appellant. On October 3, 1972, Judge Bradley (now President Judge), Court of Common Pleas of Philadelphia County, suppressed the physical evidence, but refused to suppress the statement. The Commonwealth did not appeal the court's order.*fn1 The court

[ 238 Pa. Super. Page 314]

    found that the arrest of the appellant and his accomplices, based on hot pursuit, was legal, but that the seizure of the physical evidence was improper because it exceeded the lawful scope of a search incident to arrest. The court held further that the statements were made voluntarily and were not the product of unnecessary delay or police illegality.

On November 2, 1972, a jury found appellant guilty of aggravated robbery. Appellant was represented throughout the original proceeding by the Philadelphia Defender Association. Immediately prior to the filing of post-trial motions, however, counsel who had tried the case was preparing to begin employment elsewhere. Another attorney from the Defender's office, unfamiliar with the trial, filed only pro forma post-trial motions on December 14, 1972. Appellant was thereafter sentenced to a term of one and one-half to ten years' imprisonment. No appeal was taken from the judgment of sentence.

On August 26, 1974, appellant filed a pro se PCHA*fn2 petition. Appellant's present counsel was then appointed and filed an amended petition on November 20, 1974. In that petition, appellant contended that he had been denied his rights to appeal and to be represented by effective trial counsel. On March 18, ...


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