No. 642 January Term, 1977, Appeal from Order of the Court of Common Pleas, Criminal, of Montgomery County, at No. 267 February Term, 1970
Arthur M. Rosenbaum, Philadelphia, for appellant.
John J. Burfete, Jr., Chief, Appellate Div., Ronald T. Williamson, Asst. Dist. Atty., Norristown, Montgomery Co., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Larsen, J., files a dissenting opinion.
Appellant, William C. Bartlett, was convicted in the Court of Common Pleas of Montgomery County of murder of the first degree, robbery and conspiracy in connection with the stabbing death of Milton Hawkins, whose body was found on the morning of January 14, 1970. Appellant was sentenced to imprisonment for life for the murder conviction and five to fifteen years' imprisonment for the robbery conviction, the sentences to run concurrently. Sentence was suspended on the conspiracy conviction. Appellant took a direct appeal to this court, where he was represented by trial counsel. This court affirmed the judgments of sentence, Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972) (Bartlett I). Appellant, represented by new counsel, filed a petition under the Post Conviction Hearing Act (PCHA), Act of January 25, 1966, P.L. (1965) 1580, effective March 1, 1966, 19 P.S. § 1180-1, et seq., alleging that he did not have the effective assistance of counsel at trial. The post-conviction court denied relief. Appellant acquired his third counsel and appealed, alleging that PCHA counsel was ineffective in failing to properly explore the effectiveness of trial counsel. We remanded for an evidentiary hearing to determine whether PCHA counsel was effective. Commonwealth v. Bartlett, 463 Pa. 164, 344 A.2d 476 (1975). (Bartlett II). The PCHA court held a hearing and determined that PCHA counsel was effective. Appellant now appeals that determination.
Appellant argues that PCHA counsel was ineffective for failing to raise trial counsel's ineffectiveness in his failure to file a motion to suppress the confession because of lack of probable cause to arrest. The suppression hearing was held pursuant to a defense motion to suppress an inculpatory statement appellant gave to the police after being arrested. The basis of the motion was that the statement was involuntarily given. That contention was rejected. We agreed in our opinion on the direct appeal (Bartlett I) that it was
meritless. Appellant alleges that counsel was ineffective for not arguing that the arrest was unlawful because of a lack of probable cause.
In order to pass upon appellant's allegation, we will first examine the circumstances surrounding the arrest and conviction. The following facts were brought out at hearing. Decedent's body was discovered at or about 8:00 a. m., on January 14, 1970. His children, Gary and Clementine Hawkins, told police they had seen a red Mustang in the vicinity that morning. Neighbors told the police appellant owned a red Mustang. The police went to appellant's home and told him they were looking for William Bartlett. Appellant told them he was his brother, Charles, and declined to speak with them further. Sharon Kitt was also present but the police did not know her identity at the time. She also refused to speak with them. Shortly afterward, the police saw Kitt driving a red Mustang. They stopped her and she could not produce identification for herself or an owner's card for the vehicle. Appellant had been driving a blue Mustang ahead of her. He stopped, walked over to the red Mustang, and said he could straighten out the matter. However, he did not have a driver's license or owner's card. The police told appellant and Kitt they would have to accompany them to the station while they determined who owned the vehicles. At the station, appellant said he was his brother and produced signed identification belonging to the brother. He signed his brother's name in the presence of police, who observed that the signatures did not match. Kitt eventually told the police who she was and who appellant really was. The police then told appellant they knew who he was and he admitted his true identity and was immediately arrested for the murder of decedent. The inculpatory statement followed.
At trial, separate witnesses testified that decedent was with appellant and that he got into a red Mustang. There is also testimony in the suppression record that the police were told before the arrest that appellant owned a red Mustang, that such a car came to ...