No. 1061 October Term, 1979, Appeal from the Order of the Court of Common Pleas of the County of Philadelphia, Criminal Trial Division at Nos. 118-120 May Sessions 1973.
Louis Lipschitz, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Hoffman and Van der Voort, JJ.
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Appellant was indicted at Nos. 118 (assault and battery, aggravated assault and battery and assault with intent to murder), 119 (aggravated robbery), and 120 (burglary).*fn1 A suppression hearing was conducted, after which the court denied the motion to suppress. Defendant was tried and convicted of all the above charges. Post-trial motions were made orally, argued and denied. Appellant was sentenced to a total term of thirteen and one-half (13 1/2) to forty-seven (47) years in prison. This court affirmed the judgments of sentence at Commonwealth v. Miller, 243 Pa. Superior Ct. 582,
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A.2d 234 (1976) (per curiam).*fn2 The Supreme Court denied allowance to appeal. Appellant had been represented by the Defenders Association throughout the above proceedings.
Subsequently, appellant filed a Post Conviction Hearing Act petition. New counsel was appointed to represent appellant. Following a hearing on appellant's PCHA petition the court denied relief. An appeal was taken to this court. Such appeal was nonprossed but later reinstated. Appellant obtained new counsel not associated with the Defenders Association for this appeal.
Appellant raises five questions on this appeal, all of which attack the effectiveness of all previous counsel. None of these issues were raised below.*fn3 We have rearranged the order of these contentions, reserving appellant's first contention for consideration last.
Appellant's second and third contention both pertain to the pre-trial line-up identification; these will be considered jointly. He first argues that post conviction hearing counsel was ineffective in failing to argue that previous counsel was ineffective in failing to preserve the contention that the line-up was a product of unnecessary delay between arrest and arraignment. Next he similarly argues counsel's effectiveness for not challenging the line-up as being the tainted fruit of an illegal arrest.
Before inquiring into these claims we must determine whether the claim which counsel is charged with failing to pursue was a frivolous one. See, Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977). "Only if the
[ 293 Pa. Super. Page 285]
claim which was foregone was of arguable merit must we inquire into counsel's reasons for not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977)". Commonwealth v. Gasper, 262 Pa. Superior Ct. 141, 396 A.2d 685 (1978).
Appellant was arrested at 4:00 p. m. on April 18, 1973. A line-up including appellant was conducted at 5:50 p. m. viewed by Hilda Snead, who tentatively identified appellant as the gunman. A second line-up was held on April 19, 1973 at 12:15 p. m.; a Mr. Rosenberg and a Mr. Lazier identified the appellant as the actor who had shot them. Both of these witnesses had been hospitalized from the time of the shooting until shortly before the line-ups. Appellant was arraigned sometime thereafter.
A. Appellant specifically argues that previous counsel was ineffective in not questioning the above delayed arraignment which he argues invalidates any pre-trial as well as in trial identification of appellant. He contends that under Rule 116 Pa.R.Crim.P. (now renumbered Rule 122) the identifications should have been suppressed. Rule 116*fn4 (now Rule 122) reads:
When a defendant has been arrested, with a warrant, within the county where the warrant of arrest was issued, where the complaint charges a court case, he shall be taken without unnecessary delay before the issuing authority whose ...