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COMMONWEALTH PENNSYLVANIA v. ROBERT J. SWEITZER (12/20/78)

decided: December 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT J. SWEITZER, APPELLANT



No. 908 April Term, 1977, Appeal from the Order Denying the Defendant's Motion for a New Trial under the Post Conviction Hearing Act by the Court of Common Pleas of Blair County, Criminal Division - Entered to C.A. No. 39 and 40 O & T October Term, 1973.

COUNSEL

Ralph T. Forr, Jr., Assistant Public Defender, Altoona, for appellant.

Donald E. Speice, Assistant District Attorney, Altoona, for Com., appellee.

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

Author: Per Curiam

[ 261 Pa. Super. Page 186]

Appellant contends that the lower court erred in denying him relief after a hearing under the Post Conviction Hearing Act ("PCHA").*fn1 Specifically, appellant claims that his trial counsel was ineffective because he did not (i) appeal appellant's convictions for two armed robberies, (ii) file any motion to suppress evidence obtained pursuant to appellant's allegedly unlawful arrest, (iii) object to a witness' testimony that he was appellant's parole officer, and (iv) object to a police officer's reference to appellant's photograph being on file with the local police department. Appellant further

[ 261 Pa. Super. Page 187]

    claims that he was denied fair trials on two armed robbery charges because the juries could see him handcuffed and behind bars. Lastly, appellant contends that he was denied due process because the notes of testimony from one of his two robbery trials were unavailable.*fn2 Because we find all of appellant's contentions without merit, we affirm the lower court's order denying him relief.

On May 23, 1973, Altoona police arrested appellant on charges relating to the February 11, 1973 armed robbery at the Sheetz Kwik Shopper and the May 20, 1973 armed robbery at the Skat gas station. On October 11 and 12, 1973, after separate jury trials, the lower court found appellant guilty of the two robberies. On October 15, 1973, the lower court sentenced appellant to two consecutive terms of imprisonment of three and one-half to seven years each on the two convictions for armed robbery.*fn3 Appellant filed no post-verdict motions or direct appeals. William Haberstroh, Esquire, a court-appointed attorney, represented appellant throughout the proceedings of both armed robbery cases.

On March 16, 1976, appellant filed a pro se PCHA petition for relief. On May 6 and June 10, 1976, the lower court held a hearing on appellant's petition; the Public Defender office of Blair County represented appellant at the PCHA hearing and on this appeal therefrom. Testimony from the PCHA hearing reveals the following relevant facts:

A) Concerning his failure to appeal his convictions directly, appellant testified that his attorney Haberstroh and the trial court advised him of his appeal rights concerning both convictions and that Haberstroh further advised him that he saw no reason to appeal either case. Appellant claimed that he told Haberstroh to appeal both cases "on the circumstantial

[ 261 Pa. Super. Page 188]

    evidence" and "took it for granted that he did appeal it on that." Appellant presented copies of two letters, written for him by a fellow inmate at Blair County Prison, which requested Haberstroh to appeal both cases and which, he claimed, were sent to Haberstroh within 30 days after sentencing. Appellant further testified that because he was dissatisfied with Haberstroh's representation of him ...


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