No. 2752 Philadelphia, 1981, APPEAL FROM THE PCHA ORDER OF OCTOBER 20, 1981 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIV., CRIMINAL SECT., No. 38-40 AUG. TERM, 1973
Peter C. Bowers, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Rowley and Cirillo, JJ. Spaeth, J., files a dissenting opinion.
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On November 13, 1974, appellant Miguel Rivera was convicted by a jury of first degree murder, rape and criminal conspiracy. The charges arose out of the rape of Margaret Handerahan and the murder of Kevin Wolf during the early morning hours of June 27, 1973. These sordid crimes became known throughout the Philadelphia area as the "Art Museum Murder." Post-verdict motions were filed and denied by the Honorable James T. McDermott, who then sentenced the appellant to a term of life imprisonment for the murder conviction and to a consecutive period of imprisonment of ten to twenty years for the rape conviction. On direct appeal, the Supreme Court of Pennsylvania affirmed the judgment of sentence. Commonwealth v. Rivera, 470 Pa. 131, 367 A.2d 719 (1976).*fn1
On October 16, 1976, appellant filed a petition seeking relief pursuant to the provisions of the Post Conviction Hearing Act (hereinafter "PCHA").*fn2 After a counseled evidentiary hearing, relief was denied. This is an appeal from that order.
Initially, appellant challenges the propriety of the trial court's instruction on voluntary manslaughter. Secondly,
[ 309 Pa. Super. Page 37]
he contends that the trial court erred in refusing to grant a mistrial after the prosecution read a witness' statement to the jury which referred, in passing, to appellant as a "junkie." Appellant raised these claims on direct appeal, and the Supreme Court found them to be without merit. Rivera, 470 Pa. at 138-139, 367 A.2d 719. Therefore, these issues have been finally litigated and are not cognizable in a PCHA proceeding. 19 Pa.S.A. § 1180-3(d); Commonwealth v. Velasquez, 488 Pa. 244, 412 A.2d 489 (1980); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972).*fn3
Appellant's remaining contentions deal with the alleged ineffectiveness of his trial counsel. First, he asserts that counsel was ineffective for failing to call an alibi witness to testify at the trial. Next, he argues that counsel was ineffective for failing to object when the trial court imposed sentence without affording him his allocution rights and without stating its reasons for the sentence. Third, appellant alleges that counsel was ineffective for not objecting to the trial court's charge regarding accomplice testimony. Finally, appellant contends that counsel was ineffective for failing to file a petition to dismiss charges pursuant to Pa.R.Crim.P. 1100(f).
The standard of review for ineffectiveness of counsel was established in the case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5, 235 A.2d 349, ...