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COMMONWEALTH PENNSYLVANIA v. RANCE LEE VIA (01/24/79)

decided: January 24, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
RANCE LEE VIA, APPELLANT



No. 622 January Term, 1977, Appeal nunc pro tunc from PCHA Order of the Court of Common Pleas, Criminal, of Lancaster County, at Nos. 248, 249A and 249B March Term, 1967

COUNSEL

Menno B. Rohrer, Lancaster, for appellant.

D. Richard Eckman, Dist. Atty., Charles A. Achey, Jr., Asst. Dist. Atty., Edward F. Browne, Jr., Asst. Dist. Atty., Lancaster, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, former J., took no part in the decision of this case. Eagen, C. J., and Roberts, Nix and Larsen, JJ., concur in the result.

Author: O'brien

[ 483 Pa. Page 365]

OPINION OF THE COURT

In June, 1967, appellant, Rance Lee Via, was convicted by a jury of murder of the first degree, attempted robbery, and conspiracy. Immediately after the recommendation of sentence by the jury, appellant and his trial counsel indicated that no post-verdict motions would be filed. Appellant was then sentenced to life imprisonment for the murder conviction, with a consecutive prison term of ten to twenty years for the attempted robbery conviction. He was also sentenced to a probationary term of two years for the conspiracy conviction, this term to begin at the completion of the prison term imposed on the attempted robbery conviction. No direct appeal was taken from these judgments of sentence.

On April 4, 1968, appellant filed a pro se petition under the Post Conviction Hearing Act*fn1 where, along with the various allegations of error, he requested the appointment of counsel. While counsel was appointed, no amended petition was filed and his petition was dismissed without an evidentiary hearing. No appeal was taken from this dismissal of appellant's petition.

In August of 1971, appellant filed with this court a petition in propria persona for a writ of mandamus in forma pauperis and for appointment of counsel. This court remanded the matter to the Court of Common Pleas of Lancaster County with directions to treat the petition as one seeking post-conviction relief. This court also ordered an evidentiary hearing to determine if appellant had been denied his constitutional right to appeal from the 1967 judgments of sentence. Thomas Harting, Esquire, Public Defender of Lancaster County, was appointed to represent appellant. Following the evidentiary hearing, the court below, on January 28, 1972, denied appellant's petition. No appeal was taken from the order denying that petition.

[ 483 Pa. Page 366]

On September 28, 1972, appellant filed a pro se petition with this court, requesting leave to file an appeal nunc pro tunc from the January 28, 1972 order. He also requested the appointment of counsel. This court granted appellant's petition and remanded the matter to the Lancaster County Court of Common Pleas for appointment of counsel. This court further ordered that the appeal be filed on or before December 11, 1972. On November 16, 1972, the Court of Common Pleas of Lancaster County again appointed Thomas Harting to represent appellant on his appeal to this court.

During four and one-half years, appellant's counsel did nothing on appellant's behalf until February 4, 1977, when he filed a petition with the Court of Common Pleas of Lancaster County requesting vacation of his appointment as counsel. That court vacated the appointment and appointed present counsel. On August 17, 1977, this court granted appellant's petition for permission to appeal nunc pro tunc. It is the propriety of the January 28, 1972, order dismissing appellant's second PCHA petition that is now before this court.

Appellant complains that the court below erred in dismissing his second PCHA petition, since he believes he established that he was not afforded the rights guaranteed a criminal defendant in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Appellant argues that he was not told either that counsel would be appointed to represent him on direct appeal or that appointed counsel would provide representation at no cost to appellant.

The facts surrounding this issue are as follows. Immediately following the reading of the jury's decision that life imprisonment be the ...


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