Norris E. Gelman, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones did not participate in the decision of this case. Pomeroy, J., filed a concurring opinion. Roberts, J., concurs in the result.
Milton O'Neil Humphrey was convicted by a jury in Philadelphia of murder of the first degree and three counts of aggravated robbery. Post-verdict motions were denied and concurrent judgments of sentence of three terms of not less than ten nor more than twenty years imprisonment and one term of life imprisonment were imposed. An appeal from the judgment of sentence imposed on the murder conviction was filed in this Court. An appeal from the judgments of sentence on the robbery convictions was filed in the Superior Court and certified to this Court.
On July 15, 1974, a petition for a remand for the purposes of filing of a petition and conducting a hearing 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. (Supp.1976-77), was filed. On July 18 1974, we granted the petition for remand. On August 19, 1975, a petition seeking post-conviction relief was filed in the Court of Common Pleas of Philadelphia. A hearing began on November 13, 1975, but was not concluded until March 10, 1976, because five different sessions were needed to conclude the testimony. On April 19, 1976, relief was denied. An appeal was filed in this
Court from the order denying post-conviction relief as it related to the murder conviction. An appeal from the denial of that same order as it related to the robbery convictions was filed in the Superior Court and certified here.
Humphrey has been represented by different counsel at various stages of the proceedings. Initially, Humphrey was represented by "trial counsel" who concluded his representation of Humphrey following the filing of post-verdict motions. Thereafter, new counsel, "post-verdict motions counsel," was appointed. She filed new post-verdict motions which included an allegation that trial counsel was ineffective, and, during argument on the new post-verdict motions, she requested a hearing on this issue, but the request was denied. The direct appeals to this Court from the judgments of sentence were filed by still new counsel, "appellate counsel." Appellate counsel also filed the petition for remand. On remand, Humphrey's petition for post-conviction relief was filed by still different counsel, who is also "present counsel," for Humphrey. The petition asserted that trial counsel was ineffective for numerous reasons and that post-verdict motions counsel was ineffective for failing to raise a certain issue in post-verdict motions. In any event, the issue of trial counsel's effectiveness has been raised at each stage of the proceedings since his representation of Humphrey ceased. Under the circumstances, the issue has been properly preserved for our consideration. See Commonwealth v. Hubbard, 472 Pa. 259, n. 5, 372 A.2d 687 n. 5 (filed January 28, 1977).
Humphrey contends that trial counsel was ineffective because:
1) he failed to object to three references by Commonwealth witnesses to the fact that Humphrey exercised his right to remain silent when arrested and advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and to one reference
to the same fact by the court in its charge to the jury and, thus he waived a claim of error based on these improper and prejudicial references;
2) he failed to object to numerous testimonial references to "mug shots" of Humphrey from which witnesses to the crime ...