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COMMONWEALTH PENNSYLVANIA v. FOSTER LEE TARVER (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
FOSTER LEE TARVER, APPELLANT



No. 391 April Term, 1977, Appeal from the Final Order of December 3, 1976, denying Post Conviction relief from the trial at No. 1844 February Term, 1973, in the Court of Common Pleas of Allegheny County, Criminal Division.

COUNSEL

Mark S. Frank, Pittsburgh, for appellant.

Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 253 Pa. Super. Page 187]

Appellant contends that he was denied his right to effective assistance of counsel because: (1) the court appointed counsel too late for him to prepare a defense, (2) appellant's counsel failed to object to the improper procedure of having a state trooper sign the complaint rather than personnel from the Bureau of Corrections, (3) trial

[ 253 Pa. Super. Page 188]

    counsel did not open to the jury, (4) the court appointed counsel too late for him to appear at a pre-trial conference.*fn1 We reverse and remand for further proceedings consistent with this opinion.

On February 26, 1973, the grand jury of Allegheny County returned an indictment against appellant which charged him with prison breach.*fn2 On November 5, 1973, the court disposed of several pre-trial motions advanced by appellant's co-defendants and on November 7, 1973, following the denial of appellant's pre-trial motions, a jury trial commenced. The jury found appellant guilty as charged. The court denied appellant's post-verdict motions and sentenced appellant to a five to ten year term of imprisonment to begin at the expiration of any sentence appellant was then serving. On direct appeal, our Court affirmed appellant's judgment of sentence in a per curiam order, 232 Pa. Super. 751, 337 A.2d 871 (1975), and the Supreme Court denied appellant's allocatur petition in a per curiam order dated July 17, 1975.

On April 7, 1976, appellant filed a Post Conviction Hearing Act petition raising several allegations including the denial of his Sixth Amendment right to effective assistance of

[ 253 Pa. Super. Page 189]

    counsel.*fn3 Following a hearing on August 31, 1976, at which appellant was represented by new counsel, the lower court denied appellant's request for relief. This appeal followed.

Initially, appellant contends that his counsel did not have adequate time to discuss the case with him and to prepare a defense. Therefore, he argues that his ...


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