No. 80-1-159, Appeal from Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Denying Post-Conviction Relief, at No. CC7308196A
John Halley, Court-appointed, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., concurs in the result. Larsen, J., files a concurring opinion. Flaherty, J., files a concurring opinion in which Kauffman, J., joins.
Appellant, George Butler, was found guilty of murder of the first degree on October 11, 1974, for the beating death of Captain Walter Peterson, a corrections officer at the State Correctional Institution at Pittsburgh. Post-verdict motions, filed nunc pro tunc, were denied, and appellant was sentenced to life imprisonment on September 30, 1975. No direct appeal was taken.
On June 30, 1977, appellant, by new counsel, filed a petition under the Post-Conviction Hearing Act*fn1 [PCHA] alleging the ineffectiveness of trial counsel. Following a hearing, the Court denied relief and an appeal was taken to this court. A Superior Court Special Transfer Panel heard the appeal and, in a Per Curiam Opinion, affirmed the denial of relief. Commonwealth v. Butler, 273 Pa. Super. 637, 422 A.2d 1171 (1979).
In July, 1978, appellant filed a second PCHA petition again claiming ineffective assistance of trial counsel. This petition was denied without a hearing. A third petition, filed in April, 1980, by new (and present) counsel, alleged the ineffectiveness of both trial and post-conviction counsel. The petition was denied and this appeal followed.
George Butler now asserts on appeal that his third PCHA petition was improperly denied without a hearing. Implicit in such a claim is the contention that his petition states grounds which, if proven at a hearing, would entitle him to relief. Certain of appellant's claims of ineffectiveness are directed toward trial counsel's representation. However, the claims are identical to issues raised in appellant's first PCHA petition. As previously noted, an evidentiary hearing was held to consider those issues, and the hearing court's denial of relief was affirmed on appeal.
error. We assume, from the statement of the issue in appellant's PCHA petition, that appellant desired the witnesses to appear because he believed they could have proven that two Commonwealth trial witnesses had committed perjury. At the evidentiary hearing, first post-conviction counsel advised the court that the witness would not aid in resolving the issues set forth in the petition. The court agreed with counsel but permitted appellant to state on the record his reasons for wanting to call the witnesses. Appellant claimed the witnesses could establish what pre-trial proceedings appellant had been afforded and could testify to the contents of the crime laboratory report. The hearing judge found that these matters were part of the record and denied appellant's request.*fn3 Appellant does not further detail the substance of the proposed witnesses' testimony or its relevancy. As the substance of the witnesses' testimony, as described by appellant, could be established by a reading of the record, the refusal to present the testimony of witnesses who add nothing to the case was not ineffective assistance. See Commonwealth v. Twiggs, 479 Pa. 162, 387 A.2d 1273 (1978).
Appellant next claims that post-conviction counsel did not question trial counsel's failure to take a direct appeal. This claim is directly refuted by the record. At the evidentiary hearing trial counsel testified that appellant had been adequately informed of his rights of appeal. He further asserted that appellant had advised him that he no longer desired his services or those of the Office of the Public Defender, and that he would obtain private counsel. Post-conviction counsel, on appeal to the Superior Court Special Transfer Panel, argued that trial counsel was ineffective for complying with appellant's wishes because the statement ...