No. 16 May Term, 1978, Appeal from Order of the Court of Common Pleas of York County, Pennsylvania, dated January 5, 1978, at No. 109 Criminal Action, 1976.
Daniel M. Pell, York, for appellant.
Floyd P. Jones, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., files a dissenting opinion. Flaherty, J., files a dissenting opinion in which Larsen, J., joins.
This is an appeal from an order entered in the Court of Common Pleas of York County, Criminal Division, denying appellant's petition for post-conviction relief.
Appellant, Harold D. Nelson, Jr., was convicted following a bench trial, of murder of the third degree for the killing of Heidi L. Myers, a five-month old infant. Post-verdict motions were filed and denied, and on December 20, 1976, judgment of sentence of six to fifteen years imprisonment was imposed. No direct appeal was taken.
On July 25, 1977, appellant filed a petition pursuant to the Post-Conviction Hearing Act,*fn1 in which he apparently advanced three grounds in support of his prayer for relief: that he had been denied his right to appeal; that he had been denied his right to testify in his own behalf; and that he was incompetent to stand trial. Counsel was appointed to represent appellant and directed by the court to file such "formal amendments" to the petition as he deemed advisable. None was filed.
On January 5, 1978, a hearing was held on appellant's petition for post-conviction relief. At the hearing, counsel for appellant informed the court that in light of the record he would not argue that issue raised in the petition which alleged appellant had been denied his right to testify in his own behalf. Moreover, counsel for appellant presented neither
argument nor testimony in support of the two remaining issues advanced in the petition; indeed, their very existence was unacknowledged.
Notwithstanding counsel's failure to file an amended petition, counsel seized the opportunity presented by the post-conviction hearing to argue two new issues: that trial counsel had been ineffective for failing to move to suppress a confession given by appellant to a Pennsylvania State Police officer; and that "counsel was ineffective because he didn't intervene in the examination of [appellant] by Dr. Laucks [a psychiatrist who conducted an examination of appellant at the behest of the Commonwealth and testified as a prosecution witness at trial]." Testimony was taken and argument was entertained on these issues following which the court denied the petition. From the denial of appellant's petition for post-conviction relief this appeal was taken.*fn2
Three arguments are urged upon us: that trial counsel was ineffective for failing to move to suppress appellant's confession to police; that trial counsel was ineffective for failing to move to suppress and/or object to statements made by appellant to a psychiatrist who examined appellant on behalf of the prosecution; and that trial counsel ...