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COMMONWEALTH PENNSYLVANIA v. ROBERT CARVER (11/06/81)

filed: November 6, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ROBERT CARVER, APPELLANT



NO. 290 PITTSBURGH, 1980, Appeal from the Judgment of Sentence entered on March 21, 1980, in the Court of Common Pleas of Allegheny County, Criminal Division, Nos. CC7906795A and 7906794A

COUNSEL

John H. Corbett, Jr., Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Shertz and Wieand, JJ.

Author: Shertz

[ 292 Pa. Super. Page 178]

Robert Carver was found guilty of Criminal Attempt (Theft)*fn1 and Receiving Stolen Property*fn2 in a jury trial in Allegheny County. Post-trial motions were denied and the instant appeal is from the Judgment of Sentence.

In this appeal Appellant asks this Court to find error in the lower court's failure to dismiss the indictment, or, in the alternative, to grant a new trial on the basis of an alleged violation of Appellant's right to counsel during the preliminary hearing. We have carefully examined the record and, since we find no prejudicial error reflected therein, we affirm.

On October 22, 1979, a car was stolen from the Grant Building Parking Garage in Pittsburgh. One of the parking

[ 292 Pa. Super. Page 179]

    lot attendants, Mr. Dunlap, observed the thief as he drove the car out of the garage.

On October 31, 1979, a man entered the same garage and attempted to steal another car. This time, he was prevented by garage personnel, including Mr. Dunlap, from exiting the garage with the car. The man then fled on foot and was pursued by two other garage attendants, Messrs. Hollie and Phillips, who subsequently lost him during the chase. Appellant was arrested shortly thereafter, in connection with both incidents, after identification of him by Dunlap and Phillips. This identification took place within an hour of the events of October 31, 1979.

The preliminary hearing was held on November 16, 1979, at which time Appellant was again identified by Messrs. Dunlap and Phillips. At this hearing, Appellant was not represented by counsel. Instantly, he contends that he did not make a knowing and intelligent waiver of his right to be represented. Despite the fact that evidence of the identifications at the preliminary hearing was not introduced at trial, Appellant asserts that he suffered prejudice in that, had he been represented, any flaws or weaknesses in identification*fn3 could have been discovered by cross-examination at the preliminary hearing. We need not, and do not, decide whether Appellant knowingly and intelligently waived his right to counsel at the preliminary hearing since our examination of the record indicates that the asserted error did not prejudice Appellant.

It is axiomatic that the preliminary hearing is a "critical stage" of a criminal proceeding, at which Appellant is entitled to the assistance of effective counsel. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth v. Rines, 247 Pa. Super. 429, 372 A.2d 901 (1977); Commonwealth v. Redshaw, 226 Pa. Super. 534, 323 A.2d 92 (1974). However, lack of representation at a preliminary hearing ...


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