No. 1308 October Term, 1976, Appeal from the Judgment of Sentence imposed November 30, 1972, by the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at No. 230/232 of October Term, 1971.
Paul J. Drucker, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Van der Voort, J., dissent.
[ 251 Pa. Super. Page 312]
This is an appeal nunc pro tunc from judgment of sentence. Appellant, Horace Charleston, was arrested on September 10, 1971, and charged with rape, aggravated robbery
[ 251 Pa. Super. Page 313]
and burglary. On April 5 and 6, 1972, appellant, having waived his right to a jury trial, was tried before a judge and found guilty on all charges. Post-trial motions were denied, and appellant was sentenced to five to fifteen years imprisonment. A direct appeal was taken to this Court, but that appeal was subsequently discontinued on January 16, 1974. Thereafter appellant filed a petition for relief under the Post Conviction Hearing Act*fn1 alleging, inter alia, denial of the right to representation by effective counsel and denial of the right to appeal. An evidentiary hearing was held, at which appellant was represented by counsel other than his trial counsel. The hearing judge, finding that appellant had not authorized the discontinuance of his direct appeal, granted him the right to appeal to this Court nunc pro tunc ; the other claims in the petition were denied.*fn2 This appeal followed.
Appellant's sole contention is that he was denied effective assistance of counsel at his trial. We agree and, therefore, reverse the judgment of sentence and grant a new trial.
The convictions arose from an incident which occurred in the early morning hours of September 10, 1971. At trial Carolyn Parker, the complaining witness, testified that she first met appellant in a supermarket on September 1, 1971, when he asked if he could carry her packages to the checkout counter. She encountered appellant again at a bar on the following Monday, and he walked her home. The next evening appellant visited with Miss Parker in her apartment
[ 251 Pa. Super. Page 314]
for a half hour, at which time she told him that she did not want to be bothered with him. Then on Thursday evening, September 9, she saw appellant outside her apartment; she told him that she was getting ready for bed, and appellant left.
Miss Parker further testified that she next saw appellant on Friday morning, approximately 5:00 a.m., when she awoke to find him standing over her bed. She started to scream, but appellant hit her and told her to shut up and open her legs. They struggled, and appellant then placed a knife between her breasts. After they had ...