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decided: October 23, 1979.


No. 112 May Term, 1977, No. 14 May Term, 1978, Appeal from the Order of the Court of Common Pleas of Dauphin County, Pennsylvania, Denying Post Conviction Hearing Act Relief, at Nos. 1259 and 1260 Criminal Division, 1972.


Bruce D. Foreman, Harrisburg, for appellant.

Marion E. MacIntyre, Second Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Larsen and Flaherty, JJ., file dissenting opinions. Eagen, C. J., dissents.

Author: Roberts

[ 486 Pa. Page 565]


Appellant seeks relief under the Post Conviction Hearing Act*fn1 (PCHA) on the ground that he was denied

[ 486 Pa. Page 566]

    effective assistance of counsel at trial.*fn2 Appellant bases this claim on the fact that trial counsel failed to timely move for severance. We agree and reverse the judgment of sentence and order a new trial.

Appellant and co-defendant Westley Smith were charged with aggravated robbery and murder. They were jointly tried before a jury, found guilty of murder in the first degree and sentenced to life imprisonment.

After the case was called to trial and immediately before the jury was selected, each defendant moved orally for a separate trial. The trial court denied the motions as untimely in accordance with former Rules 304 and 305 of the Pennsylvania Rules of Criminal Procedure.*fn3 Those rules

[ 486 Pa. Page 567]

    required that a written application for severance be submitted to the trial court at least ten days prior to trial.

On direct appeal to this Court, the judgment of conviction was affirmed because there was "no suggestion in the record that the opportunity to file applications for separate trials did not earlier exist or that appellant or his counsel were unaware of the possible grounds for severance." Commonwealth v. Smith, 457 Pa. 638, 642-43, 326 A.2d 60, 62 (1974).

As we stated in Commonwealth ex rel. Washington v. Maroney, the "particular course chosen by counsel [must have] some reasonable basis designed to effectuate his client's interests." 427 Pa. 599, 604, 235 A.2d 349, 352 (1957). Here, appellant's right to a separate trial in this homicide case was absolute.*fn4

Counsel's untimely request for severance reflects a judgment by him that a separate trial would advance the interests of his client. In light of that judgment, there can be no reasonable basis for belatedly seeking this remedy. Hence appellant was denied effective assistance of trial counsel and is entitled to a new trial.

Accordingly, the judgment of sentence is reversed and a new trial is ordered.

LARSEN, Justice, dissenting.

I dissent.

As a result of the Majority Opinion, defense counsel, in all murder cases involving multiple defendants, will deliberately

[ 486 Pa. Page 568]

    delay the filing of a motion for severance until after the time required to file said motion. The lower court will deny the motion because of untimeliness. The defendant, if having been found guilty, is then guaranteed a new trial on the grounds that he received ineffective assistance of counsel.

Our judicial system should not be structured so that a defendant can automatically get a new (second) trial because of a strategic move made by defense counsel prior to trial.

I would affirm the judgment of sentence.

FLAHERTY, Justice, dissenting.

Whether appellant's trial counsel was completely unaware of the statutory right to demand a separate trial, or whether, having knowledge of such statutory right, he simply failed to timely move for severance, or whether he indeed had a legitimate reason for not asserting appellant's right to a separate trial, at the time, is unclear from the record. Thus, I believe that a hearing should be held to resolve this question, and would remand to the PCHA court for an evidentiary hearing to determine the question of counsel's effectiveness.

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