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COMMONWEALTH PENNSYLVANIA v. JACK DONALD FOX (07/31/79)

submitted: July 31, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JACK DONALD FOX, APPELLANT



No. 276 Special Transfer Docket, APPEAL FROM THE OPINION AND ORDER DENYING PETITIONER'S MOTION FOR RELIEF UNDER POST CONVICTION HEARING ACT BY THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY, TO 362 CRIMINAL ACTION 1969, PCHA HEARING NO. 2.

COUNSEL

Shaubut C. Walz, III, Newport, for appellant.

Stewart L. Kurtz, District Attorney, Huntingdon, for Commonwealth, appellee.

Watkins, Manderino and Cirillo, JJ.*fn*

Author: Cirillo

[ 272 Pa. Super. Page 10]

Appellant, Jack Donald Fox, was convicted of first degree murder in 1970 and sentenced to life imprisonment. The appellant was represented at trial by Attorney Willard, the Chief County Public Defender, now deceased, and Attorney Mullin, a Public Defender from another county, who is still alive and practicing. On direct appeal, the Supreme Court

[ 272 Pa. Super. Page 11]

    affirmed the conviction on October 12, 1971. Commonwealth v. Fox, 445 Pa. 76, 282 A.2d 341 (1971).

Appellant filed a petition for Post Conviction Hearing Act relief*fn1 (hereafter "PCHA") on December 3, 1971, which was denied without a hearing. On appeal, the Supreme Court remanded for further proceedings. Commonwealth v. Fox, 448 Pa. 491, 295 A.2d 285 (1972). On May 3, 1974, a PCHA Hearing was held and the petition was dismissed. The appellant took an appeal to the Supreme Court which affirmed the dismissal; however, the court remanded for a hearing on the issue of effectiveness of his chief trial counsel, Mr. Willard. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). The reason for this was because Mr. Mullin, who participated in the trial of the case, was still representing appellant in the second PCHA proceeding, and appeal therefrom, alleging the ineffectiveness of his co-counsel at trial. Following the withdrawal of Mr. Mullin and the appointment of new counsel, such PCHA hearing was held on May 4, 1978, in which only appellant and his sister testified; the Commonwealth offered no evidence. The lower court dismissed the petition and this appeal ensued. We affirm.

Appellant alleges that he was denied his constitutional right to representation by competent counsel, in that his defender, Mr. Willard, did not competently represent appellant during the pre-trial, trial, and post-trial phases of the original proceedings.

The first issue is whether appellant was denied his right to competent counsel in the pre-trial stage in that: he was able to confer with Mr. Willard on only five or six occasions for a total of five and one-half or six and one-half hours; that he only discussed his version of what happened on the date of the shooting on one occasion; that he was never provided with a copy of the complaint and indictment or information after requesting it; and that no pre-trial motion was filed attacking the twelve-day period between arrest and preliminary hearing.

[ 272 Pa. Super. Page 12]

"The burden of establishing the ground upon which post-conviction relief is requested rests on the person seeking that relief." Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976); 19 P.S.C.A. ยง 1180-3(c)(6). The standard of review used to determine counsel's effectiveness is well established: ". . . our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate ...


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