No. 1143 April Term, 1978, No. 149 April Term, 1979, Appeals from The Judgment of Sentence and Order of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC7401183A.
Helen R. Kotler, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Hester, Montgomery and Lipez, JJ. Hester, J., files a dissenting statement.
[ 299 Pa. Super. Page 434]
The factual and procedural history of these consolidated appeals is as follows:
On November 5, 1973, two gunmen robbed a Pittsburgh tavern. They remained in the well lit bar for approximately fifteen minutes taking money from the cash register and a collection jar. Several bottles of whiskey were also taken. The tavern owner and the bartender closely observed the gunmen while the robbery was in progress. A few weeks later, the owner recognized appellant as one of four men pictured in the newspaper. The police were notified, and several days later, appellant and his co-defendant were identified in a lineup of four men including three of those whose pictures appeared in the newspaper. Appellant was seventeen years old at the time.
A petition for delinquency was filed on December 31, 1973, alleging appellant's involvement in the tavern robbery. The case was certified to the Criminal Division of the Court of Common Pleas on February 14, 1974. Appellant was thereafter indicted on one count of armed robbery. He proceeded to trial on April 13, 1974, but a mistrial was declared by the trial judge, over defense counsel's objections, due to the jury's inability to reach a verdict. Motions to dismiss on grounds of double jeopardy and a Pa.R.Crim.P. 1100 violation were denied on May 20, 1976, and a new trial commenced
[ 299 Pa. Super. Page 435]
immediately before a judge and jury. Four days later, appellant was found guilty as charged, and was sentenced to two and one half (2 1/2) to five (5) years imprisonment on July 20, 1976.
Timely filed post verdict motions alleged, inter alia, erroneous denial of his motions to dismiss and his motion to suppress the lineup identification. The motions were denied. A direct appeal was perfected setting forth two issues for review: (1) the impropriety of the declaration of a mistrial over appellant's objections; and, (2) the insufficiency of the evidence to sustain the conviction. This court affirmed the judgment of sentence in Commonwealth v. Gunter, 250 Pa. Super. 601, 379 A.2d 588 (1977). Appellant's petition for allowance of appeal was denied by the Supreme Court.
In November of 1977, appellant filed a petition pursuant to the Post Conviction Hearing Act*fn1 (hereinafter PCHA) causing the lower court to appoint current counsel to assist in the proceeding. Appellant's original and amended PCHA petitions alleged, inter alia, that original appellate counsel was ineffective in not raising the issue of his denial of the right to a speedy trial.*fn2
Following a hearing, the lower court granted appellant the right to appeal, nunc pro tunc, the speedy trial issue to this court. That appeal was docketed at No. 1143 April Term, 1978. The lower court then filed an order denying PCHA relief on all other issues. ...