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COMMONWEALTH PENNSYLVANIA v. GREGORY POWELL (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY POWELL, APPELLANT



Appeal No. 607, January Term, 1974, from Order of Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County at No. 3831, April Sessions, 1966; Ethan Allen Doty, Judge.

COUNSEL

Michael H. Cox, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a concurring and dissenting opinion.

Author: Per Curiam

[ 470 Pa. Page 592]

OPINION

Order affirmed.

MANDERINO, Justice, concurring and dissenting.

Appellant Gregory Powell, was convicted of aggravated robbery and murder in the first degree, and sentenced to life imprisonment. The judgment of sentence following that conviction was affirmed on direct appeal. Commonwealth v. Powell, 449 Pa. 126, 295 A.2d 295 (1972). The factual history surrounding these charges is summarized in that opinion.

This appeal is from the denial of appellant's petition filed pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., (19 P.S. § 1180-1 et seq.). The procedural history leading to this appeal is as follows. Following the trial, trial counsel withdrew from the case and new counsel argued post-verdict motions. They were denied by the court en banc. Ineffectiveness of trial counsel was not alleged in the post-verdict motions. Appeal was then taken, with the assistance of appellant's new counsel, to this Court. On appeal, appellant challenged the sufficiency of the evidence, and alleged the improper suppression of evidence by the prosecution. Ineffectiveness of trial counsel was alleged. The claim of prosecutorial misconduct did not appear in the trial record, and to properly dispose of the issue, we remanded the record to the court below for an evidentiary hearing. Commonwealth v. Powell, 449 Pa. 126, 131, 295 A.2d 295, 297-98 (1972). At the conclusion of the hearing, the trial court found no evidence of the alleged impropriety, and we affirmed appellant's judgment of sentence.

[ 470 Pa. Page 593]

On March 25, 1974, appellant filed his petition for relief under the Post Conviction Hearing Act. He claimed that he had been ineffectively represented by trial counsel and that his conviction was based on perjured testimony. This claim has subsequently been abandoned. In his petition, appellant alleged that he was indigent and requested that counsel be appointed. An amended petition was filed by appellant on May 22, 1974, in which he complained that trial counsel had not established the bias of the prosecution's primary witness, had not presented alibi evidence or evidence that another person had been identified as the culprit by one of the robbery witnesses, and had not allowed Powell to testify in his own behalf at trial. Concluding that these allegations had been waived, the lower court denied appellant's petition on June 6, 1974, without having appointed counsel.

An appeal was taken to this Court with court-appointed appellate counsel to assist appellant. Appellate counsel argued that the court below had erred in failing to grant appellant's request for appointed counsel before acting on the post-conviction petition. The Commonwealth agreed and joined in a Joint Petition for Remand which we granted, per curiam. Following remand, present counsel was appointed and a hearing on the petition was held. Appellant testified and also presented testimony from his brother, James Powell, his mother, Corrine Powell, and his friend, Patricia Graves. In summary, relevant to the issues raised on the present appeal, appellant testified that his trial counsel was ineffective for not cross-examining the primary witness against appellant as to his possible bias, for not pursuing the alleged identification of another perpetrator, and for not calling available alibi and character witnesses. ...


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