No. 167 March Term, 1978, Appeal from the Order of the Court of Common Pleas, Criminal Division, York County, at No. 326 Criminal Action, 1976, and No. 686 Criminal Action, 1976.
David Schaumann, York, for appellant.
John C. Uhler, District Attorney, York, for Commonwealth, appellee.
Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Brosky, JJ.
[ 296 Pa. Super. Page 437]
This case was listed for reargument along with Commonwealth v. Miranda, 296 Pa. Super. 441, 442 A.2d 1133 (1982),*fn1 since the primary issue also concerns the scope of review permitted a PCHA court once it decides that the PCHA petitioner has been denied his appellate rights.
Appellant, Barry L. May, was involved in three trials before the York County Court. In one jury trial appellant was charged, along with two other defendants, with the robbery of a beer distributor. In the second case, appellant and another defendant were tried before a jury on a charge of robbery of a retail establishment. In this latter case, Mr. David W. Stitely, Esquire represented appellant and his co-defendant. Finally, in a third case appellant was represented by Mr. H. Stanley Rebert, Esquire in a non-jury trial involving a residential burglary charge. Convictions resulted at all trials and post-trial motions were filed and denied in each case. No direct appeals were taken from any of the judgments of sentence.
Appellant filed PCHA petitions in each case. Counsel was appointed and hearings were held in the lower court. As to
[ 296 Pa. Super. Page 438]
the case involving the residential burglary charge, appellant contended that counsel was ineffective for failing to take a direct appeal. The lower court found that the failure to file a direct appeal was solely the result of counsel's inadvertence, and granted appellant leave to appeal nunc pro tunc from the judgment of sentence.
As with reference to the beverage distributor robbery the PCHA court found that trial counsel was ineffective for failing to object to prosecutorial misconduct which was held to be both clear and prejudicial. As a result, a new trial was awarded to appellant.
The third case before the PCHA court involved the robbery at the retail store. Here, appellant raised numerous claims of ineffective counsel, including the contention that counsel failed, through inadvertence, to pursue a direct appeal. After analyzing the merits of each claim, the PCHA court found all but the denial of appellate rights claim to be devoid of merit. Thus, the court awarded appeal rights nunc pro tunc to appellant.
This appeal followed. It was captioned as an appeal from denial of defendant's PCHA petition.*fn2 The filing of the appeal by appellant was inaccurate. In fact, this is one of the problems we discussed in Commonwealth v. Miranda, 296 Pa. Super. 441, 442 A.2d 1133 (1982). We also have a procedural error on the part of the lower court. When the PCHA court does not act within the procedural guidelines set forth in Commonwealth v. Webster, 466 Pa. 314, 317, 353 A.2d 372, 373, (1976) and Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977), as discussed in our case of Commonwealth v. Miranda, supra, confusion ...