No. 9 May Term, 1978, Appeal from the Order of the Court of Common Pleas of York County, at No. 508 January Sessions, 1973
Glenn C. Vaughn, York, for appellant.
John C. Uhler, Dist. Atty., Sheryl Ann Dorney, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., files a dissenting opinion in which Eagen, C. J., joins. Nix, J., files a dissenting opinion in which Eagen, C. J., joins.
This appeal is from an order in the Court of Common Pleas, York County, denying relief under the Post Conviction Hearing Act.
Appellant, Ramon Perez Detre, was convicted by a jury of murder of the first degree. Post-verdict motions were denied and appellant was sentenced to life imprisonment. This Court, finding that appellant's only issue had been waived, affirmed the judgment of sentence. Commonwealth v. Detre, 462 Pa. 344, 341 A.2d 112 (1975).
Appellant filed a petition under the Post Conviction Hearing Act, alleging that he had been denied the effective assistance of trial counsel. Following an evidentiary hearing, the P.C.H.A. Court denied appellant's petition. The propriety of said denial is the substance of the instant appeal.
The facts are as follows: On December 30, 1972, appellant shot and killed Raphael Rivera in a public street in the City of York. Mr. and Mrs. Elwood Dapp witnessed the shooting
from their house. Although the Dapps testified at appellant's preliminary hearing, they failed to appear at trial despite having been served with Commonwealth subpoenas. Appellant's trial counsel and the York County District Attorney agreed to read Mr. Dapp's preliminary hearing testimony into the trial record. Counsel, however, never requested a continuance to secure the Dapp's presence at trial.
On direct appeal, appellant alleged that the trial court had erred in proceeding with the trial when Mr. and Mrs. Dapp had failed to appear. We held, however, that the issue had been waived because of trial counsel's ...