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COMMONWEALTH PENNSYLVANIA v. ANTHONY J. LOWRY (11/22/78)

decided: November 22, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY J. LOWRY, APPELLANT



No. 587 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC7503352A, entered on February 11, 1977, denying Post-Conviction Relief.

COUNSEL

Arthur H. Stroyd, Jr., and Reed, Smith, Shaw & McClay, Pittsburgh, for appellant.

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

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone and Price, JJ., concur in the result. Spaeth, J., files a concurring opinion. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 260 Pa. Super. Page 458]

Appellant was convicted by a jury on September 9, 1975 in Common Pleas Court of Allegheny County of possession of a controlled substance, carrying a firearm without a license, and former convict not to own a firearm. No appeal was taken from the judgment of sentence. The instant petition under the Post-Conviction Hearing Act*fn1 was thereafter filed alleging ineffective assistance of trial counsel and other deprivation of rights. Following a hearing thereon, the court granted a new trial on the possession count, arrested judgment on carrying a firearm without a license, and denied relief as to the remaining count. This appeal followed.

[ 260 Pa. Super. Page 459]

Facts adduced at the suppression hearing and at trial were as follows. On April 17, 1975, Detectives Joiner and Craig of the Pittsburgh Police Dept., acting on the tip of an informant, proceeded to the intersection of Centre Avenue and Arthur Street in the city's Hill District to observe a suspected drug transaction. When they arrived, they observed a red and black Pontiac convertible blocking Arthur Street. Appellant was seated at the wheel, while two other individuals, Allen and Berkley, stood outside. Someone yelled, "The police" (ST. 12) and appellant drove the car away at a "high rate of speed." (ST. 12). Det. Joiner gave chase on foot while Det. Craig drove the police vehicle. A short distance away, appellant stopped the car and all occupants exited, but not before someone threw a small foil package out the window. A search of the car by Det. Craig at the scene produced a .38 caliber special under the front armrest. The officers successfully retrieved the small foil packet from the roadway and subsequent tests proved the substance therein to be cocaine.

We must first determine if, as the Commonwealth contends, appellant has waived the issues herein because of his failure to prosecute a direct appeal. Before disposition of post trial motions, appellant wrote to his trial counsel expressing his "dissatisf[action] with your handling of my case up to this point . . . Consequently, I shall effect my appeal without your further assistance." It is unclear from the record whether a lawyer argued appellant's post trial motions. No appeal from the denial thereof was ever docketed.

Ordinarily, the failure to file an appeal compels a finding that the claims in question have been waived. PCHA, § 1180-4(b)(1); Commonwealth v. Dimitris, 247 Pa. Super. 486, 372 A.2d 930 (1977). We are unable to conclude, however, that the failure to file an appeal herein was a "knowing and understanding" failure, § 1180-4(b)(1). At the Post Conviction Hearing, appellant testified he first directed his trial counsel to file an appeal and to send appellant a copy of the brief. PCH Trans. pp. 82-3. Believing

[ 260 Pa. Super. Page 460]

    an appeal had been filed, appellant later discharged his trial counsel and filed his first PCHA petition, which was dismissed by the court as being "premature" during the appeal period. Appellant was not "quite sure the reason it was denied", PCH Trans. p. 84, but nonetheless requested a reinstatement of the petition. When directed by the lower court to draw a new petition, appellant complied, filing the instant petition. These attempts to seek a review of his conviction, as well as appellant's mistaken belief that an appeal on his behalf had been docketed, lead us to conclude appellant did not knowingly and understandingly fail to pursue a direct appeal. See Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Olsen, 247 Pa. Super. 513, 372 A.2d 1207 (1977).

Turning to the merits of this appeal, we consider first appellant's averments of trial counsel's ineffectiveness.*fn2 Initially, we note counsel will be deemed effective once we conclude that the particular choice made by counsel had some reasonable basis designed to effectuate his client's interests. "[A] finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 603, 235 A.2d 349, 353 (1968). Appellant first contends trial counsel failed to question an inference that appellant possessed the weapon found in the car. Since the gun was discovered under the middle armrest of the vehicle, appellant argues that ...


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