No. 80-3-378, Appeal from the Order of the Court of Common Pleas of Philadelphia, Criminal Trial Division, Honorable Edward J. Blake
Ronald A. White, Philadelphia, for appellant.
Robert B. Lawler, Maureen Brennen, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman, and Wilkinson, JJ. Roberts, J., filed a dissenting opinion in which O'Brien, C. J., joins.
This is an appeal from denial, after a hearing, of relief under the Post Conviction Hearing Act.
Appellant, Anthony Wallace, was indicted on charges of murder, aggravated assault and simple assault (2 counts each), possession of an instrument of crime, criminal conspiracy, prohibited offensive weapons and violation of the Uniform Firearms Act in connection with the shooting death of Jesse Chalmers in Philadelphia, in June of 1975. Following plea negotiations appellant pleaded guilty, on October 22, 1975, to charges of murder generally, on certification by the District Attorney that the degree of guilt rose no higher than murder of the third degree, and two counts of aggravated assault, for which he was sentenced to 11 1/2 to 25 years imprisonment. No post-verdict motions were filed, nor was an appeal taken.
Appellant raises three theories to support his claim that his guilty plea was induced by his counsel's ineffective assistance: (1) counsel's misrepresentation to appellant that he would be eligible for parole after serving one-third of his minimum sentence; (2) counsel's failure to conduct an independent investigation in preparation for trial and (3) counsel's failure to petition the court for transfer to juvenile court.
The claims will be addressed seriatim.
At the hearing on the petition, several members of appellant's family testified on appellant's behalf that they heard appellant's counsel tell appellant he would be eligible for parole after serving one-third of his minimum sentence. However, appellant's guilty plea counsel testified unequivocally, "I didn't tell him that." The lower court opinion states, "We are convinced that defendant's trial counsel testified in a straightforward and credible manner, and we find his testimony worthy of belief." The hearing court, as trier of fact, resolved the issue of credibility in favor of guilty plea counsel, and in view of the competent evidence in
the record to support the court's determination, that determination will not be disturbed on appeal. Commonwealth v. Riddick, 492 ...