NO. 2795 OCTOBER TERM, 1978, Appeal from the Post Conviction Hearing Act denied in the Court of Common Pleas of Lackawanna County, Criminal Division, No. 1582 of 1975
James A. Doherty, Scranton, for appellant.
Robert A. Mazzoni, District Attorney, Scranton, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 294 Pa. Super. Page 519]
Appellant pleaded guilty on January 28, 1976 to a charge of Theft by Receiving Stolen Property*fn1 pursuant to a plea bargain and was sentenced to a term of imprisonment of not less than one nor more than four years. The sentencing judge directed that the sentence be served consecutively to a sentence upon an unrelated charge then being served by Appellant. Appellant filed a timely appeal in this Court from the judgment of sentence and we affirmed by per curiam order.*fn2
Appellant then filed a petition attacking his guilty plea pursuant to the Post Conviction Hearing Act*fn3 (PCHA), contending that his guilty plea was unlawfully induced by the ineffective assistance of counsel who represented him at the time of his guilty plea. Appellant's single specification underlying his charge of ineffectiveness was, and remains, the failure of counsel to file a motion to suppress an allegedly
[ 294 Pa. Super. Page 520]
coerced incriminatory statement given by Appellant to the Pennsylvania State Police.*fn4
The lower court convened an evidentiary hearing upon Appellant's PCHA Petition at which Appellant, his guilty-plea counsel, and Trooper Owczarski, the Pennsylvania State Policeman to whom Appellant made his incriminatory statement testified at length. Following the hearing, the court filed an opinion in which it found that counsel's decision to forego filing a motion to suppress the statement had a reasonable basis designed to effectuate his client's interests. The court further found Appellant's statement to have been voluntarily and intelligently given, without coercion, and denied Appellant relief.
The findings of the lower court are set forth in its opinion:
"This Court finds that counsel's decision not to file a Motion to Suppress did have a reasonable basis designed to effectuate his client's interests.
This Court finds from the evidence that the Defendant's statements were voluntary, after a knowing and intelligent waiver of his constitutional rights to remain silent.
The Court further finds that there were no threats made against the Defendant or his family by any law enforcement personal or anyone acting in their behalf to induce any incriminating statements." Id. at 2.
Appellant, on appeal, in addition to pursuing his contention that counsel was ineffective in failing to file a motion to suppress the statement, also asserts three errors that he contends resulted in a prejudiced and tainted PCHA hearing: (A) the refusal of the hearing judge to recuse himself; (B) the "court's failure to completely transcribe all of the testimony" received at the hearing; and (C) the denial by the court of a motion made by Appellant's counsel at the outset of the hearing to require the District Attorney to produce a prisoner incarcerated in New Jersey as a witness,
[ 294 Pa. Super. Page 521]
and the refusal of the court to receive the testimony of two additional defense witnesses. We dispose of the latter three contentions before we discuss the stewardship of Appellant's guilty plea counsel.
ASSERTED PCHA HEARING ...