No. 120 January Term 1977, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia, denying Post-Conviction Relief at Nos. 469-472, February Sessions 1970.
Maryann Conway, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Dept. Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., filed a dissenting opinion in which Nix, J., joined.
On November 2, 1970, Orlandus Smith was convicted by a jury in Philadelphia of voluntary manslaughter, robbery, burglary with intent to commit a felony, and carrying a concealed deadly weapon. The charges arose out of the fatal stabbing of Dr. Oliver Wilson. Prison sentences were imposed, and on direct appeal we affirmed the judgments. Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973).
On December 15, 1975, Smith filed a petition seeking post-conviction relief pursuant to the provisions of the Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. [Hereinafter: PCHA]. After a counseled evidentiary hearing, relief was denied. This appeal is from that order.
In his post-conviction relief petition, Smith contended, inter alia, he was denied the assistance of effective counsel in post-verdict motions and on direct appeal. At both stages, he was represented by the same counsel. Different court-appointed counsel, however, represented Smith at his PCHA hearing, after which the Court of Common Pleas held that Smith's trial and appellate counsel were competent and effective. In this appeal, in which he is represented by still another court-appointed counsel, Smith raises the ineffectiveness of counsel at three stages: trial, appellate and post-conviction.
Smith asserts three incidents of ineffectiveness by his counsel in support of his claim for relief. First, he asserts trial counsel should have repolled the jury or clarified the record when there was confusion as to the jury's finding of the degree of guilt on the homicide bill. Next, Smith argues counsel, in post-verdict motions and on direct appeal, should have assigned as error the trial court's overruling of his objection to the assistant district attorney's closing argument to the jury. Finally, Smith argues post-conviction
relief counsel should have obtained the testimony of Smith's original trial counsel and should have presented Smith's pro se post-conviction petition claims to the court in a "legally meaningful way."
Since we find that counsel's failure to pursue the issue of prosecutorial misconduct at trial in post-trial motions and on direct appeal amounted to a denial of Smith's constitutional right to representation by effective counsel, and since this basis for relief was advanced at the ...