No. 80-2-328, Appeal from the Order of the Court of Common Pleas of Dauphin County, at Nos. 1262, 1263, 1972.
Marilyn C. Zilli, 1st Asst. Public Defender, for appellant.
Marion E. MacIntyre, 1st Asst. Dist. Atty., William A. Behe Deputy Dist. Atty., for Com.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Flaherty, J., concurs in the result. Nix, J., files a dissenting opinion. Larsen, J., files a dissenting opinion in which Kauffman, J., joins.
In October, 1972, appellant, Westley Smith, was convicted by a jury of murder of the first degree and robbery. The convictions arose from an incident where appellant and a co-defendant, William Von Smith, had beaten to death a Harrisburg barber, George Fautz, and had then taken the victim's wallet. Appellant was informed of both his right to file post-verdict motions and the right to appeal immediately after the jury had announced its guilty verdicts; the court then sentenced appellant to life imprisonment.
Although co-defendant Von Smith subsequently filed post-verdict motions, no such motions were filed on appellant's behalf.*fn1 In October, 1973, appellant contacted the office of
the Public Defender of Dauphin County. Appellant informed the assistant public defender that privately retained counsel had represented him through the post-verdict motions, but that he lacked sufficient funds to pursue an appeal to the Supreme Court. At that time, appellant erroneously believed that post-verdict motions had been filed in his case.
The assistant public defender thereafter filed a motion on behalf of appellant seeking the right to appeal nunc pro tunc. Appellant alleged that he had understood post-verdict motions had been filed, when, in fact, they had not. Appellant contended that private counsel failed to inform appellant that no appeal had been taken. The Commonwealth opposed the motion and submitted an affidavit by trial counsel, which stated that no appeal was filed because appellant had never requested such action. The petition to appeal nunc pro tunc was denied by our court in a per curiam order of January 15, 1974.
In June, 1980, appellant filed a petition pursuant to the Post Conviction Hearing Act,*fn2 alleging that he had been denied the effective assistance of trial counsel when counsel failed to file a timely motion to sever appellant's trial from that of his co-defendant. Appellant further alleged that he had been denied his appellate rights. The petition was denied without an evidentiary hearing on October 29, 1980, and this appeal followed.
Appellant now asserts, inter alia, that the PCHA court erred in dismissing his petition without a hearing. The Post ...