No. 2064 October Term, 1976, Appeal from the Order of the Court of Common Pleas, Criminal Division, Trial Section of Philadelphia County at Nos. 1488 1490 March Session 1969.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, 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. Jacobs, President Judge, and Spaeth, J., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 468]
Russell Rivers, appellant, was arrested along with an accomplice on February 4, 1969, on charges stemming from his involvement in the armed holdup of a Philadelphia Housing Authority Office. He was charged with burglary,*fn1 aggravated robbery,*fn2 and carrying a firearm*fn3 without a
[ 256 Pa. Super. Page 469]
license. On July 6, 1970, a Motion to Suppress identification evidence along with Motions to Suppress other evidence were litigated. However, the following day the Motion to Suppress the identification evidence was withdrawn and the other motions were denied. Appellant stood trial on July 7, 1970, before a judge and jury which resulted in the declaration of a mistrial when the jury could not agree on a verdict.*fn4 A second trial commenced on May 6, 1971, where appellant was represented by appointed counsel. On May 10, 1971, the jury returned a verdict of guilty on the charges of robbery, carrying a firearm without a license and burglary. Post-verdict motions were filed and denied. On December 28, 1971, appellant was sentenced to serve a term of incarceration for not less than three years nor more than ten years on the charge of aggravated robbery. The sentences on the charges of burglary and carrying a firearm without a license were suspended. An appeal from the judgment of sentence was filed at Nos. 367-369, October Term, 1972, with this Court by newly appointed counsel. In Commonwealth v. Rivers, 222 Pa. Super. 730, 294 A.2d 771 (1972), we affirmed the judgment of sentence of the lower court by per curiam order.
A petition under the Post-Conviction Hearing Act*fn5 was filed by appellant on July 14, 1975, and the Defender Association was appointed to represent him. An evidentiary hearing was held on June 2, 1976, before the Honorable ETHAN ALLEN DOTY after which appellant's requested relief was denied. From that order of court this appeal was filed.
Briefly, the facts at the trial established that two men both armed with pistols entered a Philadelphia Housing Authority office on February 4, 1969, shortly after 1:00 p. m. Three employees were on the premises at that time, two women and a man. The two women were tied up with tape and, with a gun held to his head, the man was instructed to
[ 256 Pa. Super. Page 470]
open the safe or else they would "blow his brains out". In addition to emptying the safe, the two assailants took the wallet, checkbook and $14 in cash from the male employee. About this point in time, police sirens sounded and the two individuals ran from the office leaving behind a shopping bag containing a black sweater, a quantity of rope, a black hat, gloves, two bank bags, and $200 that had been removed from the cash drawer. Appellant and his partner fled to a nearby house where they were eventually apprehended by the police. The wallet was recovered from the pocket of appellant's accomplice and two pistols, a .45 caliber automatic and a .38 caliber revolver, were recovered a short distance from where two individuals were taken into custody.
In the instant appeal, from the denial of relief under his post-conviction petition, appellant raises several issues all pertaining to the ineffective assistance of counsel. It is his initial contention that trial counsel was ineffective because he failed to request that the jury be polled after the foreman indicated that the jury had difficulty reaching a decision. However, the Commonwealth argues that this issue is not properly before this Court because it had been finally litigated in appellant's direct appeal. In support of its position, the Commonwealth refers to Sections 1180-3 and 1180-4 of the Post Conviction Hearing Act, supra.
§ 1180-3. Eligibility for relief
To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 (§ 1180-5) and must prove the following:
(d) That the error resulting in his conviction and sentence has not been finally litigated or waived.
§ 1180-4. When an issue is finally litigated or waived
(a) For the purpose of this act, an issue is ...