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filed: January 18, 1980.


No. 2229 October Term, 1978, Appeal from the Order Entered July 19, 1978, by the Court of Common Pleas of Northampton County, Criminal Division, at No. 341 October Term, 1974.


Terence L. Faul, Bangor, for appellant.

John E. Gallagher, District Attorney, Easton, for Commonwealth, appellee.

Van der Voort, Hester and Wieand, JJ.*fn*

Author: Wieand

[ 274 Pa. Super. Page 468]

On March 26, 1975, George E. Williams, appellant, was convicted by a jury of robbery*fn1 and conspiracy.*fn2 Following dismissal of post-trial motions, he was sentenced to pay costs, make restitution, and undergo imprisonment for not less than seven and one-half years nor more than fifteen years. The Superior Court affirmed the judgment of sentence by per curiam order issued on July 21, 1977,*fn3 and the Supreme Court denied allocatur.

On October 28, 1977, appellant filed a Post-Conviction Hearing Act Petition alleging that counsel had been ineffective for (1) failing to move to suppress the in-court identification testimony of James Johnson, an eyewitness; (2) failing to investigate and call an alibi witness; (3) failing to request pre-trial statements made by the eyewitnesses at the scene; and (4) failing to cross-examine a co-conspirator who testified against appellant regarding (a) a prior criminal conviction and (b) an alleged deal made with the District Attorney. Appellant further alleges that his sentence should be vacated because the sentencing court failed to comply with the standards enunciated by the Supreme Court in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Following an evidentiary hearing, appellant's petition was denied on July 19, 1978. This appeal is from that order.

[ 274 Pa. Super. Page 469]

Appellant's ineffectiveness of counsel claim is viable despite evidence that new appellate counsel (other than trial counsel), with leave of court, filed an additional brief in the Superior Court while the appeal filed by trial counsel was pending. The additional brief, written by Attorney Vincent Ziccardi, alleged, inter alia, that trial counsel was ineffective because he had not moved to suppress the identification testimony of a witness. The Superior Court, without written opinion, affirmed appellant's judgment of sentence per curiam. Trial counsel alone petitioned the Supreme Court for allowance of appeal. The Commonwealth argues that, in light of Ziccardi's brief and the per curiam affirmance, the errors alleged in appellant's P.C.H.A. petition have been either finally litigated or waived. See: Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, No. 554, §§ 3d, 4, 19 P.S. §§ 1180-3(d), 1180-4. We disagree.

Testimony at the P.C.H.A. hearing divulged that, unbeknownst to appellant, Ziccardi had been employed by appellant's stepfather. Appellant testified that he did not speak with Ziccardi and did not see the brief which he filed with the Superior Court. Thus, appellant, unaware of Ziccardi's efforts, could not have "knowingly and intelligently" waived his right to raise issues of ineffectiveness. See: 19 P.S. § 1180-4(b)(i). Moreover, appellant's claim of ineffectiveness has not been finally litigated by virtue of the per curiam affirmance. We have held consistently that a claim of ineffectiveness cannot be disposed of on direct appeal unless appellate counsel is other than trial counsel and the grounds upon which the claim is based appear of record. See: Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). See also: Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Babb, 246 Pa. Super. 471, 371 A.2d 933 (1977). The issues raised in appellant's petition required an evidentiary hearing to determine trial counsel's competence under the standards set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). See: Commonwealth v. Jackson, 239 Pa. Super. 121, 362 A.2d 324 (1976); Commonwealth v. Benjamin,

[ 274 Pa. Super. Page 470219]

Pa. Super. 344, 280 A.2d 625 (1971). Therefore, under the unique facts of this case, we hold that this Court's per curiam affirmance was not a final determination of the merits. Therefore, appellant's right to seek post-conviction relief has not been extinguished.

Briefly stated, the facts are as follows: during the early morning hours of October 8, 1974, appellant, Henry Curtis James, and a third confederate, now deceased, held up the Three Colts Bar in Easton, Pennsylvania. Present in the bar at the time of the robbery were two patrons and the bartender, all of whom testified at trial. The only patron able to identify appellant positively was James Johnson. The co-conspirator, Henry Curtis James, testified on behalf of the Commonwealth that he, appellant and a third person had agreed to and did rob the bar. At the time of appellant's trial, James had already entered pleas of guilty to charges of robbery and conspiracy and was awaiting sentence. Appellant testified in defense that he was in Philadelphia on the night of the robbery.

Appellant asserts that trial counsel was ineffective for failing to seek suppression of the identification testimony of James Johnson who, on direct examination, identified appellant as the one who had robbed him at knifepoint. On cross-examination, trial counsel elicited that Johnson had seen appellant at the preliminary hearing. Appellant argues that trial counsel should thereupon have moved to suppress Johnson's testimony. The meeting at the preliminary hearing, appellant contends, was an impermissible one-on-one confrontation which tainted the later in-court identification and required suppression.

Johnson, although present at the preliminary hearing, was not then called to testify. Thus, counsel did not know that he would be able to identify appellant as one of the robbers. At the P.C.H.A. hearing, the testimony showed that several blacks, in addition to appellant, had been present at the hearing. While this evidence tends to refute appellant's allegation that the ...

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