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.
Appellant seeks relief under the Post Conviction Hearing Act*fn1 (PCHA) on the ground that he was denied
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
required that a written application for severance be submitted to the trial court at ...