Lester G. Nauhaus, John H. Corbett, Jr., Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., J. M. Verney, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., did not participate in the decision of this case.
On March 1, 1972, Richard Lane, while represented by privately retained counsel, was convicted of receiving stolen goods in a non-jury trial in Allegheny County.*fn1 He was placed on probation for five years. No appeal was entered.*fn2
On January 10, 1975, Lane filed a petition seeking post-conviction relief. After an evidentiary hearing, Lane was permitted to file post-verdict motions nunc pro tunc. The motions were filed and subsequently denied. On appeal, the Superior Court affirmed the trial court's probation order. We granted allocatur. Throughout these proceedings, Lane had the assistance of new counsel.
The sole issue posed by this appeal is whether Lane was denied his constitutional right to effective trial counsel. We are convinced he was and thus reverse.
During his summation and before the trial court had entered a finding as to guilt or innocence, Lane's trial counsel said this to the court:
"Your Honor, this Defendant has been in trouble before. I do believe even though he did commit a foolish act here I believe he tried to rectify that act by being very cooperative with Chief Hoover. If he didn't have a record I would ask Your Honor to give him the benefit of the doubt and find him not guilty. I do believe he paid for
what he has done in the past, and I think his story is very plausible. Before he consulted anybody, why, he told the Chief probably the same as he told on the witness stand. I think the only thing he is guilty of is foolishness. I don't believe there is any proof that he knew the merchandise was stolen, and surely the thieves wouldn't tell him it was stolen. They wouldn't say, 'We have hot merchandise.'" (Emphasis added.)
Following this the court inquired: "What does the record show?" Whereupon it was disclosed that Lane has previously been convicted of three armed robberies, a ...