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COMMONWEALTH PENNSYLVANIA v. LEE PRESTON FLYNN (02/19/82)

filed: February 19, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
LEE PRESTON FLYNN, APPELLANT



Nos. 241 and 2121 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Luzerne County, Pennsylvania, at Nos. 2889, 2890 of 1978 and 188, 189, 311, 312, 723, 861 and 862 of 1979.

COUNSEL

John A. Bednarz, Jr., Wilkes-Barre, for appellant.

Anthony J. Lucadamo, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Brosky, Johnson and Popovich, JJ.

Author: Popovich

[ 295 Pa. Super. Page 515]

Appellant, Lee Preston Flynn, appeals from the lower court's denial of his request for relief under the Post-Conviction Hearing Act*fn1 (PCHA). We reverse and remand for proceedings consistent with this opinion.

The facts, as garnered from the record, consist of the following: On March 5, 1979, appellant pled guilty to two counts of Burglary, two counts of Receiving Stolen Property, two counts of Theft, Criminal Conspiracy and Criminal Attempt. The plea was entered pursuant to a bargain, wherein appellant, on May 14th, was sentenced on just one count of Burglary to a minimum term of two and one-half years less two days and a maximum term of five years less one day. Sentence on the remaining charges was suspended.

On May 29, 1979, appellant again pled guilty to Theft By Unlawful Taking and Criminal Attempt to Commit Arson. In exchange for the plea, appellant was sentenced to a minimum of two and one-half years less two days and a maximum of five years less one day on the Theft By Unlawful Taking offense -- this was to be served concurrently to the prior sentence. Also, the sentences for charges on Receiving Stolen Property and Criminal Attempt to Commit Arson were suspended. Additionally, two counts of Corruption of Minors were nolle prossed. As with the first plea, appellant filed neither a petition to withdraw nor an appeal from the sentence imposed, although he was informed by the court of his right to do so.

It was not until July 16, 1979, that appellant took legal action by preparing a pro se PCHA petition. In the petition he alleged, inter alia, guilty plea counsel's ineffectiveness. Because of appellant's representation by a member of the Public Defender's Office of Luzerne County at the time of his pleas, the court wisely appointed private counsel to assist

[ 295 Pa. Super. Page 516]

    him. An amended petition was filed alleging: (a) the introduction of evidence obtained pursuant to an unlawful arrest; (b) the introduction of evidence obtained by an unconstitutional search and seizure; (c) the introduction of a coerced confession into evidence; (d) the introduction into evidence of a statement obtained in the absence of a lawyer at a time when representation was constitutionally required; (e) the infringement of appellant's privilege against self-incrimination under either federal or state law; (f) the denial of appellant's constitutional right to representation by a competent lawyer; (g) the pleas of guilty being unlawfully induced; and (h) the unavailability at the time of trial of exculpatory evidence that subsequently became available and that would have affected the outcome of the trial if it had been introduced.

A hearing was held, and, after the taking of testimony, the petition was denied on January 16, 1980. Counsel proceeded to file an appeal; however, before he "received a briefing schedule" from this Court, he "withdrew and discontinued" the appeal. Counsel then submitted a second PCHA petition to the lower court reasserting Points (a), (f), (g) and (h) listed supra. Further, counsel argued his own ineffectiveness for "not obtain[ing] a copy of the notes of testimony of the March 5, 1979 guilty plea hearing . . . until almost a year later . . . ." (Appellant's "Brief In Support Of The Petitioner's Request For Post Conviction Hearing," at 6) Had he done so, counsel urged, he would have been able to present the PCHA court with evidence that the March 5th plea was: 1) factually defective; and 2) deficient for not informing the accused "that the jury would be chosen from members of the community or that the verdict of the jury would have to be unanimous . . . ." Id. at 8. After a hearing, the relief requesting withdrawal of the guilty pleas was denied on September 2, 1980.

The instant action is a consolidation of appellant's appeal from the lower court's Orders, dated January 16, 1980 -- re: March 5th plea, and ...


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