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decided: March 10, 1982.


No. 80-3-491, Appeal from Order entered March 7, 1980, of the Court of Common Pleas, Criminal Division, of Cumberland County, at No. 88 December Term, 1972


Timothy J. O'Connell, Harrisburg, for appellant.

Edgar B. Bayley, Jr., Dist. Atty., for the Commonwealth.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: O'brien

[ 497 Pa. Page 480]


Appellant, Letitia Denise Smallwood, was convicted of two counts of murder of the first degree and one count of

[ 497 Pa. Page 481]

    arson in the Court of Common Pleas of Cumberland County. She was sentenced to life imprisonment for each count of murder and ten to twenty years for arson, the sentences to run concurrently. Following trial counsel's filing of boiler plate post-verdict motions, appellant obtained new counsel (hereinafter "appellate counsel") who represented her for the disposition of post-verdict motions and on direct appeal. Argument on post-trial motions was rescheduled four times, the first time pursuant to appellate counsel's request, the last three because he failed to appear. When appellate counsel failed to appear the fourth time, the trial court proceeded to decide post-trial motions, denying them on the merits on January 10, 1974. Two years later this Court affirmed the judgment of sentence. Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976).

Appellant, by new counsel, filed a petition in the Court of Common Pleas for relief under the Post-Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1, et seq. (hereinafter "PCHA"), alleging ineffectiveness on the part of trial counsel. She also alleged that appellate counsel was ineffective in not raising the claims on appeal. Subsequent to a hearing on October 5, 1979, the Court of Common Pleas denied relief. This appeal followed.

In the present case, a fire occurred at an apartment building at 11 North Pitt Street in Carlisle, Pennsylvania, during the early morning hours of August 29, 1972. The decedents, Paula Wagner and Steven Johnson were residents of the building. Wagner died of injuries received when jumping from the building. Johnson, unable to escape the flames, died from extensive burns.

The Commonwealth's evidence indicates that Richard Baltimore was living with Paula Wagner, deceased, and simultaneously dating appellant. Appellant resented the relationship between Baltimore and Wagner and made threats against them on a number of occasions. On August 23, 1972, appellant filed charges against Baltimore for assault and battery. Two days later she dropped the charges, relying on Baltimore's promise that he would stop seeing Wagner and,

[ 497 Pa. Page 482]

    instead, live with appellant. Appellant rented a room at the James Wilson Hotel, which is located across the street from 11 North Pitt Street. Baltimore did not leave Wagner as he had promised, and the arguments and threats continued. At 1:58 a. m. on August 29, 1972, a false fire alarm occurred at the James Wilson Hotel. At 2:20 a. m., appellant was seen at the Hamilton Restaurant which was adjacent to 11 North Pitt Street. The alarm for the fire at 11 North Pitt Street was turned in at 2:54 a. m. Appellant was again seen at 3:15 a. m. in the vicinity of the fire.

Richard Baltimore, injured during the fire, required hospitalization. Appellant visited him at about 1:45 p. m. on August 29, 1972. A nurse testified that she saw appellant and that she was visibly upset and crying. Appellant stated, "It's my fault, it's my fault. I'm responsible for him being here." When the nurse asked her how she could be responsible for a fire, appellant became calm and said no more. This testimony was corroborated by an orderly who was also present. He, however, testified additionally that appellant stated, "it's because of me that the fire started."

Appellant testified that she had a good relationship with Baltimore and Wagner. She claimed she dropped the assault and battery charges against Baltimore because he was on parole and would be returned to jail. She also asserted that she was at the Hamilton Restaurant at 1:30 a. m. on the night of the fire and then returned to her room in the James Wilson Hotel and went to bed. She denied knowledge of the false alarm, but admitted making the above-described statement to the nurse. She explained that Baltimore would have been with her rather than in the burning building if they had not been arguing.

In this appeal from the denial of post-conviction relief, appellant alleges five instances of trial counsel's ineffectiveness, and concurrently argues that appellate counsel was ineffective in not alleging the errors in post-trial motions and on direct appeal. Although trial counsel testified at the PCHA hearing, appellate counsel had died prior to that date.

[ 497 Pa. Page 483]

In order to obtain relief under the Post-Conviction Hearing Act, it is necessary "[t]hat the error . . . has not been finally litigated or waived." PCHA § 3(d), 19 P.S. § 1180-3(d). An issue may not be finally litigated or waived, however, in a proceeding where counsel's representation is ineffective. Commonwealth v. Musser, 463 Pa. 85, 343 A.2d 354 (1975). Ineffective assistance of counsel is an extraordinary circumstance that justifies the failure to raise an issue. ...

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