No. 1078 April Term, 1979, Appeal from denial of appellant's Post-Conviction petition by the Court of Common Pleas, Criminal Division, Erie County at No. 1086 of 1975 - Order of November 9, 1979
William A. Dopierala, Erie, for appellant.
Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
Spaeth, Johnson and Popovich, JJ. Spaeth, J., files a concurring opinion. Popovich, J., files a dissenting opinion.
[ 288 Pa. Super. Page 71]
This appeal is from an order denying relief under the Post Conviction Hearing Act*fn1 where the sole allegation involved the denial of appellant's constitutional right to representation by competent counsel. We affirm.
On May 5, 1975, appellant was arrested and charged with statutory rape, incest, and corruption of minors. Eleven days later, an appearance was entered on his behalf by an attorney from the Public Defender's Office of Erie County. On September 8, 1975, the aforesaid attorney's father, who was also a practicing attorney within the county and whose first and last name were the same as his Assistant Public Defender-son, was arrested by the Pennsylvania State Police on a number of charges.
The arrest of the father of appellant's then-attorney led to great publicity, including coverage by all major television stations in the Erie County area, as well as the local newspaper.
On September 11, 1975, three days after his father's arrest and the resultant publicity, appellant's counsel filed an Application for Continuance in this as well as twenty-five other pending cases. The basis for the Application[s] was counsel's belief that the name similarity could adversely affect the rights of his client[s] in that there could arise an inference of improper conduct on counsel's part. Counsel believed that it would be prejudicial to the defendant to proceed to trial under the aforestated circumstances.
[ 288 Pa. Super. Page 72]
As part of his Application, counsel waived the defendant's rights under Rule 1100 of the Pennsylvania Rules of Criminal Procedure. The defendant was not notified of counsel's intention to present the Application nor did the defendant join therein.
Defendant was tried on November 10, 1975 (eight days after the expiration of the 180-day period) which trial resulted in a hung jury. No objection was raised at trial, by trial counsel (an Assistant Public Defender other than the counsel whose alleged ineffectiveness is here at issue). On November 26, 1975, both the defendant and his trial counsel joined in the Commonwealth's Petition to Extend Time for Prompt Trial which petition had been prompted by the hung jury. On December 17, 1975, the lower court granted the Commonwealth's petition and scheduled the retrial for the January 1976 term of the criminal court. Defendant was tried and found guilty of two counts of statutory rape and two counts of corruption of minors on January 14, 1976.
Following denial of post-trial motions, a PCHA petition was filed by the defendant on May 4, 1977, pro se, and an amended PCHA petition was filed by appointed counsel on August 23, 1977. The lower court sustained defendant's claim of ineffectiveness of post-trial counsel and granted leave to defendant to perfect a direct appeal to the Superior Court.
On November 17, 1978, the Superior Court affirmed the judgment of sentence.*fn2
A second PCHA petition was filed on February 8, 1979, which was dismissed without hearing on March 7, 1979. Counsel was again appointed for defendant, and a third PCHA petition was filed, pointing out that the factual allegations regarding alleged ineffectiveness of counsel in the prior petition required a hearing. An evidentiary hearing was then ...