No. 543 January Term, 1978 Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, February Term, 1968, Nos. 1297-1304, denying Post Conviction Relief
Robert B. Mozenter, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Sarah Vandenbraak, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts and Nix, JJ., each filed a concurring opinion. Eagen, C. J., concurs in the result.
Appellant, Leroy Jones, was convicted by a jury of first degree murder, conspiracy, two counts of aggravated robbery, and burglary. Following the denial of post verdict motions, appellant was sentenced to life imprisonment on the murder charge and to concurrent terms of from ten to twenty years imprisonment on the two aggravated robbery indictments.*fn1 The judgment of sentence was affirmed by this Court on direct appeal. Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973).
Thereafter, appellant, represented by new counsel, filed a petition for relief under the Post-Conviction Hearing Act (P.C.H.A.). This petition was dismissed. Represented by the same counsel, appellant then filed an amended petition to the aforesaid petition for relief under the P.C.H.A. in which he challenged the effectiveness of trial counsel's assistance. The amended petition was dismissed, and this appeal followed.
Appellant contends that his trial counsel was ineffective for (1) failing to object to deliberation by the jury on bills of indictment on which appellant contends he was not properly arraigned; and (2) failing to object to the jury being charged on these same bills of indictment.
On the aforementioned direct appeal, this Court examined the arraignment procedure and concluded that no impropriety existed. Commonwealth v. Jones, supra.*fn2 Appellant now urges this Court to reconsider the same issue under an ineffective assistance of counsel theory. Since this issue was fully considered by this Court on direct appeal, it has been finally litigated and is not open to collateral attack. 19 P.S. §§ 1180-3(d), 1180-4(a)(3) (Supp.1979-80); Commonwealth v. McNeal, 479 Pa. 112, 387 A.2d 860 (1978). See Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972) (relitigation
may not be achieved merely because a new or different theory is advanced as a basis for relitigating an ...