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decided: December 29, 1978.


No. 765 April Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, Butler County, Pennsylvania, of May 2, 1977, refusing without hearing Appellant's Post Conviction Petition filed April 15, 1977 at Nos. C.A. 395 of 1976 and C.A. 537 of 1976 for said County.


Rex Downie, Jr., Beaver Falls, for appellant.

Robert F. Hawk, Butler, for Com., appellee.

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

Author: Jacobs

[ 262 Pa. Super. Page 169]

Appellant Gary Lee Strader appeals to this Court from the order of the Court of Common Pleas of Butler County denying his Post Conviction Hearing Act petition without a hearing.*fn1 One half of the petition dealt with a judgment of sentence entered after appellant was convicted following a jury trial of terroristic threats, indecent assault, and unlawful restraint. We find no error in the lower court's dismissing this part of the petition without a hearing and, accordingly,

[ 262 Pa. Super. Page 170]

    affirm that part of the order. The other half of appellant's P.C.H.A. petition related to his guilty plea to a charge of rape. Appellant was entitled to a hearing on this aspect of his petition. Therefore, we reverse this part of the lower court's order and remand the case for an evidentiary hearing limited to this issue.*fn2

If a [P.C.H.A.] petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner.

The Act of Jan. 25, 1966, P.L. (1965) 1580, § 9, 19 P.S. § 1180-9 (1978-79 Supp.). When a lower court denies a P.C.H.A. petition without a hearing, we will affirm the court's order if upon an examination of the record we also can determine that the claims raised in the petition are patently frivolous. We will remand for an evidentiary hearing on the petition only when it is impossible to tell from the record whether appellant's petition was frivolous and without support. Commonwealth v. Payton, 253 Pa. Super. 422, 385 A.2d 410, 412, 414 (1978).

Appellant's first claim in his P.C.H.A. petition was that trial counsel was ineffective in failing to file a timely motion to suppress identification testimony prior to his trial

[ 262 Pa. Super. Page 171]

    on the aforementioned charges.*fn3 In determining whether appellant was denied the effective assistance of counsel, we must make an independent review of the record, and first decide whether the claim with which the attorney is charged with not pursuing had some reasonable basis. Only if the claim which was foregone was of arguable merit must we inquire into counsel's reasons for not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977).

Reviewing the evidence in a light most favorable to the verdict winner,*fn4 here, the Commonwealth, the facts are as follows: On the evening of May 11, 1976, at approximately 9:30 P.M., Ms. Karen Holden was returning home from work. As she was proceeding north along Route 8 in Butler County, appellant drove up beside her in his car and motioned for her to stop. After they both pulled off the road, appellant, telling her that he had a gun, forced her out of her car and into his. He then requested that she have sexual intercourse with him and commit sodomy upon him. When she refused, he started his car and drove to a nearby cemetery. There, they both got out of his car and he attempted to force her to have sexual relations with him. She screamed and managed to escape, running to a nearby house. Appellant sped off in his car.

Upon arriving at the house, Ms. Holden explained to Mr. Robert Cover what had happened and asked him for help. While Mr. Cover was telephoning the police, a neighbor, Mr. Joseph Shaffer, arrived at the Cover home. Before the police arrived, Ms. Holden described her assailant to Cover and Shaffer as being short and stocky with shoulder length

[ 262 Pa. Super. Page 172]

    brown hair and sideburns. She said that he was wearing brown plaid pants and was driving a yellow Chevrolet Nova. She repeatedly stated that she could "definitely" identify him and that she would "never forget him." After Officer Lennon of the Middlesex Township Police Department arrived she repeated this description of her assailant and stated that she could positively identify him if she were to see him again.

Officer Lennon then placed Ms. Holden and Messrs. Cover and Shaffer in his police car and drove them to a nearby trailer park. While driving through the park. Ms. Holden and Mr. Shaffer simultaneously saw a yellow Chevrolet Nova. Officer Lennon stopped his car. At about that time, four individuals, appellant, a second man, and two women, emerged from a nearby trailer. According to both Cover and Shaffer, Ms. Holden exclaimed "that's him" as soon as appellant appeared in the trailer doorway. Officer Lennon asked appellant to approach the police car. Appellant did so and when he put his head into the car Ms. Holden positively identified him as her assailant.

Appellant thereafter was charged with terroristic threats, indecent assault, and unlawful restraint. Appellant moved pretrial to suppress Ms. Holden's identification of him because it was the product of an impermissibly suggestive showup. The motion was denied as being untimely. At trial, Ms. Holden identified appellant as her assailant and also testified to her identification of him on the night of May 11, 1976. Appellant was convicted of all three charges. He filed post trial motions which challenged, inter alia, the court's denial of his pretrial motion to suppress the identification of him at the trailer park. Appellant withdrew his post trial motions in conjunction with a guilty plea entered to another charge, to be discussed infra. No direct appeal was taken following appellant's conviction and sentencing. At all times between appellant's preliminary hearing and the filing of the P.C.H.A. petition, appellant was represented by the same counsel.

[ 262 Pa. Super. Page 173]

We hold that appellant's counsel was not ineffective for failing to file a timely pretrial motion to suppress the identification because such a motion would have been meritless. While it is true that identification evidence should not be admitted at trial if the circumstances of the pretrial confrontation are so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification, "the admission of evidence of a showup without more does not violate due process." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972). See also Stoval v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967); Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974). The determinative factor in admitting evidence of a pretrial confrontation is whether, under the totality of the circumstances, the identification was reliable even though the confrontation may have been suggestive. In determining the likelihood of misidentification resulting from a showup, we must evaluate the witness' opportunity to observe the accused at the time of the crime, the witness' degree of attention, the accuracy of the witness' description of the accused prior to the showup, the level of certainty demonstrated by the witness at the time of the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411.

In the case before us, Ms. Holden was with her assailant for approximately one-half hour. They spent part of that time in a dark car and part of the time in a moon-lit cemetery. Ms. Holden testified that she could not describe her assailant's face because of the darkness, but she did carefully describe his build, the length and color of his hair, his clothing, and his general appearance to Messrs. Cover and Shaffer and to Officer Lennon. The only discrepancy between Ms. Holden's description of her assailant and appellant's actual appearance was that at one point she described him as being five feet three inches tall and he testified that he is five feet eight inches tall. Upon seeing appellant at his trailer, within one-half hour after her escape from the

[ 262 Pa. Super. Page 174]

    assailant, Ms. Holden positively and unequivocally identified appellant as the man who had attacked her. She did so spontaneously as he emerged from the trailer,*fn5 and again when Officer Lennon had him approach the police car. At no time did anyone suggest to Ms. Holden that appellant was a suspect in the crime.

Based upon the totality of the circumstances in this case, we find that the identification procedure was not so unnecessarily suggestive and conducive to an irreparably mistaken identification as to deny appellant due process of law.*fn6 Any pretrial motion to suppress this identification testimony would have been without merit, and counsel was not ineffective for failing to make such a motion. Therefore, the lower court did not err in denying this portion of appellant's P.C.H.A. petition without a hearing since appellant's claim is patently frivolous and without a trace of support on the record or through other evidence.

We now turn to appellant's contention that the lower court erred in dismissing without a hearing that part of his P.C.H.A. petition which alleged that his guilty plea to a charge of rape was unlawfully induced.*fn7 Claims challenging the voluntariness of a guilty plea are to be raised in motions to withdraw the plea made to the trial court. Commonwealth v. Schwartz, 251 Pa. Super. 36, 39, 379 A.2d

[ 262 Pa. Super. Page 175319]

, 321 (1977); Commonwealth v. Roberts, 237 Pa. Super. 336, 337, 352 A.2d 140, 141 (1975). We must first determine, then, whether appellant's failure to file a motion to withdraw his guilty plea constitutes a waiver and precludes him from raising the issue in a P.C.H.A. petition. The Act of Jan. 25, 1966, P.L. (1965) 1580, § 4, 19 P.S. § 1180-4(b). We hold that it does not. Appellant's petition alleges, albeit inartfully, that his guilty plea was unlawfully induced due to the ineffective assistance of his counsel. As noted earlier, ineffective assistance of counsel has been held to be an extraordinary circumstance excusing an appellant's failure to follow appropriate procedures in seeking relief for his or her complaints. Commonwealth v. Valezquez, 244 Pa. Super. 327, 330, 368 A.2d 745, 746 (1976). Therefore, we will treat appellant's P.C.H.A. petition as if it were a properly presented petition to withdraw his guilty plea.

[ 262 Pa. Super. Page 176]

The petition alleges inter alia that appellant's plea was unlawfully induced because counsel failed to conduct an appropriate investigation or prepare an adequate defense to the charge of rape, counsel failed to move to suppress an identification procured in a suggestive manner, and counsel "persistently advised Petitioner that a deal for '3 to 8 was better than 10 to 20' and that he should enter a guilty plea on pragmatic grounds rather than on grounds of innocence or guilt."*fn8 Upon an examination of the record before us, we cannot say that appellant's claims are patently frivolous or without support on the record. Even though the Commonwealth disputes appellant's allegations and even though appellant stated at his guilty plea colloquy that his plea was not induced by anything other than the sentence agreement and that he was satisfied with the representation he received from his counsel, the record does not clearly refute appellant's claim that his plea was unlawfully induced. See Page 176} Commonwealth v. Knapp, 212 Pa. Super. 560, 562, 243 A.2d 179, 180 (1968). Our courts have previously determined that in borderline cases petitioners are to be given "every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing." Commonwealth v. Nahodil, 212 Pa. Super. 77, 79, 239 A.2d 840, 840 (1968). See also Commonwealth v. Laboy, 460 Pa. 466, 470, 333 A.2d 868, 870 (1975).

Since issues of fact have been raised in appellant's P.C.H.A. petition and since we cannot hold that they are patently frivolous or without support on the record, we reverse the lower court's order dismissing appellant's P.C.H.A. challenge to his guilty plea and remand that part of this case for an evidentiary hearing. If, after the hearing, the lower court determines that appellant's guilty plea to rape was not unlawfully induced, appellant's petition shall be denied. If the court determines that the plea was unlawfully induced, appellant shall be given the opportunity to withdraw the plea and proceed to trial.

Appellant also has requested that the hearing on his P.C.H.A. petition be conducted before a different judge. Usually, we find no error in allowing the same judge who presided at a trial or over a guilty plea colloquy to preside at a subsequent P.C.H.A. hearing. In fact, such a procedure is often of benefit to all concerned since the judge is already familiar with the case and may be better able to decide the issues presented. If there is no indication that the interests of justice warrant recusal, we will not order a hearing before a different judge. Commonwealth v. McKelvey, 257 Pa. Super. 409, 415, n. 4 390 A.2d 1302, 1305, n. 4 (1978). Unfortunately, this is not such a case.

There is no indication on the record that Judge DILLON acted unfairly or improperly at appellant's trial. At the guilty plea proceedings, however, the following exchange took place:

THE COURT: And you were found guilty of terroristic threats and indecent assault and unlawful restraint, do you understand that?

[ 262 Pa. Super. Page 177]


THE COURT: And the range of sentence on all of those, I don't have to repeat those to you. You were found guilty of those. Do you understand that under our system we have to send you to Rockview. That's the area for any sentence in excess of six months. We do not guarantee that you'll stay there. That's up to the Bureau of Correction, you understand that?


THE COURT: You understand that if the sentence of three to eight years is the sentence three years is when you are eligible for parole?


THE COURT: Eighteen months is when you are eligible for consideration of pre-release status. Do you understand that? Have you talked that over with Mr. Cingolani?


THE COURT: The Judge has that right to veto any pre-release recommendation. We have very little control over your parole, do you understand that?


MR. CINGOLANI: Judge, I think you told me you wouldn't veto any pre-release program that came up with him, for him if he otherwise was a good prisoner.

THE COURT: That's right. I usually go along but I'm telling you now, you put this on the record, you're going to go down there. You're going to get a lot of free advice, and if you hassle us with post-conviction problems, I veto them. [Emphasis added.]

Guilty Plea Proceedings, N.T. 9-12.

In fact, Judge DILLON did "veto" appellant's post conviction petition. While we affirmed his action in part, we also reversed his action in part. In light of Judge DILLON'S remarks at the guilty plea proceedings, we find that the interests of justice require us to order that the evidentiary

[ 262 Pa. Super. Page 178]

    hearing on appellant's P.C.H.A. petition be held before a different judge.

Affirmed in part, reversed in part, and case remanded for proceedings not inconsistent with this opinion.

HESTER, Judge, dissenting:

I dissent.

I would affirm the judgment and sentence of the court below.

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