No. 39 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Dismissing an Amended Post Conviction Hearing Petition As Of March Term, 1973, Nos. 270-273.
Jay S. Gottlieb, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 249 Pa. Super. Page 505]
In a Post Conviction hearing Act petition*fn1 appellant alleged that the state unconstitutionally used perjured testimony to secure his conviction and that trial counsel provided ineffective assistance because he pressured appellant to waive his right to a jury trial and failed to explain adequately the possible consequences of a jury trial waiver. The lower court dismissed this petition without a hearing. We hold that appellant is entitled to a PCHA hearing on his contention that trial counsel was ineffective because he pressured and advised appellant to waive trial by jury.*fn2
[ 249 Pa. Super. Page 506]
On December 29, 1972, appellant was arrested on charges of aggravated robbery*fn3 and burglary.*fn4 On April 4, 1973, appellant's trial counsel filed a motion to suppress identification and physical evidence on the grounds, among others, that the police did not have probable cause to arrest appellant and that they conducted an unnecessarily suggestive identification procedure at the scene of the crime. On May 17, 1973, counsel withdrew this motion. On the same day, appellant waived his right to a trial by jury and proceeded to trial, along with two co-defendants, before the lower court. On May 18, 1973, the lower court found appellant and one co-defendant guilty of the above charges. Appellant's trial counsel filed an appeal with our Court on the grounds that the evidence was insufficient to convict appellant. On May 29, 1974, we affirmed per curiam. On July 19, 1974, allocatur was denied.
On December 10, 1975, appellant filed an uncounselled PCHA petition alleging, in pertinent part: (1) introduction of evidence obtained pursuant to an unlawful arrest and unconstitutional search and seizure, (2) ineffective assistance of counsel, and (3) unconstitutional use of perjured testimony by the Commonwealth. In particular, the petition alleged: "I was advised by my lawyer not to go to trial with a jury although I did not think this would be to my best interest. My lawyer refused to represent me properly if I was to choose a jury, thereby inducing me to accept my trial on his terms. In addition to this my lawyer did not keep me informed as to what I should expect from a judge instead of a jury." The Commonwealth filed an answer in which it denied that appellant was entitled to a new trial, but admitted that an evidentiary hearing would be required on appellant's allegations that he received ineffective assistance of counsel. The lower court then appointed new counsel to represent appellant and on May 18, 1976, counsel filed an
[ 249 Pa. Super. Page 507]
amended PCHA petition reasserting the above claims and incorporating by reference the uncounselled petition. On August 25, 1976, the lower court, notwithstanding the concurrence of the Commonwealth in appellant's request for an evidentiary hearing, dismissed the petition without a hearing. This appeal followed.
First, we consider appellant's contention that the Commonwealth's primary witnesses, the arresting police officers, committed perjury and that his conviction, therefore, violated due process. Appellant bases this contention upon discrepancies in the record between the testimony of the arresting police officers and the testimony of three Commonwealth eyewitnesses. For example, two police officers testified that they removed all money from the possession of appellant and his two companions before returning them to the scene of the crime; three eyewitnesses testified that they saw the money hanging out of the pockets of one suspect. Further, appellant also points to inconsistencies between the testimony of the police officers at appellant's preliminary hearing and at trial. For example, at the preliminary hearing, one police officer testified that he returned a stolen wallet to its owner who remained at the scene of the crime; at trial, the police officer admitted that the victim was not at the place of the robbery when the police returned. However, in his post-verdict motions and on direct appeal before our Court and the Supreme Court, appellant raised this exact contention under the rubric of insufficient evidence. Indeed, appellant's present brief relies to a great extent on his post-verdict motion memorandum which directly raised the issue of possible perjury. In its opinion denying appellant's post-verdict motions, the lower court stated: "Although ...