No. 144 April Term, 1978, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Blair County, at No. 81 of 1974.
Philip W. Savitz, Hollidaysburg, for appellant.
Thomas G. Peoples, Jr., District Attorney, Hollidaysburg, for Commonwealth, appellee.
Cercone, Wieand and Hoffman, JJ.
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Appellant was tried on April 30-May 2, 1974, on charges of statutory rape, aggravated assault, indecent assault,
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and endangering the welfare of children, and was convicted on all counts. On direct appeal, we reversed the conviction for statutory rape because of a lack of evidence on the essential element of penetration, and affirmed the convictions on the remaining charges. Commonwealth v. Grassmyer, 237 Pa. Super. 394, 352 A.2d 178 (1975). On September 10, 1976, appellant filed a pro se PCHA petition alleging ineffective assistance of counsel, later amended orally by court-appointed counsel at a hearing on January 10, 1977, at which no evidence was taken. On August 5, 1977, the court below dismissed appellant's petition. Because appellant's direct appeal counsel was from the same Public Defender's office as his trial counsel, appellant has not waived his claims of ineffectiveness. Commonwealth v. Hairston, 251 Pa. Super. 93, 95, 380 A.2d 393, 394 (1977).
Appellant raises six separate instances of alleged ineffective assistance of counsel. The court below erroneously dismissed all of the claims without a hearing.
Some of appellant's claims, even if true, do not entitle appellant to relief, and upon these we affirm the order of the court below. Other claims allege facts, which if true, show a meritorious issue not raised by trial counsel, and upon these we remand for an evidentiary hearing. See 19 P.S. § 1180-9; Commonwealth v. Strader, 262 Pa. Super. 166, 170, 396 A.2d 697, 699 (1978); Commonwealth v. Payton, 253 Pa. Super. 422, 428, 385 A.2d 410, 414 (1978).
Appellant first contends that trial counsel was ineffective for failing to move for a severance of the statutory rape charge from the other charges of aggravated assault, indecent assault, and endangering the welfare of a child, all of which grew out of his attack on a five-year old girl left in his custody. Since all four charges grew out of the same criminal act, it was proper to try all charges together. See Commonwealth v. Brown, 227 Pa. Super. 410, 323 A.2d 223 (1974); Commonwealth ex rel. Conyers v. Banmiller, 193 Pa. Super. 368, 165 A.2d 278 (1960); Commonwealth ex rel. Tokarchik v. Claudy, 174 Pa. Super. 509, 102 A.2d 207 (1954). Therefore, it was correct to dismiss this contention without a hearing.
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Appellant next contends that trial counsel was ineffective for failing to raise the issue of the merger of the offenses of aggravated assault and endangering the welfare of children. However, "[a] single act . . . may constitute two or more separate offenses if each offense requires proof of facts additional to those involved in the other." Commonwealth v. Ruehling, 232 Pa. Super. 378, 383, 334 A.2d 702, 704 (1975). The offense of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), requires that the defendant cause or attempt to cause serious bodily injury to the victim, an essential element not required in the endangering the welfare of children offense. The endangering statute, 18 Pa.C.S.A. § 4304, requires that the defendant have a certain status relationship to the victim (parent, guardian, or supervisor), that the victim be under 18 years of age, and that the defendant's act is a violation of ...