No. 198 Harrisburg Term, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of York County, No. 682 CA 1977.
Scott Lee Kelley, Assistant Public Defender, York, for appellant.
Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
Brosky, Wieand and Montemuro, JJ.
[ 300 Pa. Super. Page 183]
George Raymond Hook was convicted by a jury of burglary, robbery, attempted rape and aggravated assault. On
[ 300 Pa. Super. Page 184]
direct appeal, his conviction was affirmed by this Court,*fn1 and allocatur was denied by the Supreme Court. Hook next attempted to attack his conviction collaterally by a P.C.H.A. petition. After hearing, the trial court entered an order dismissing the petition. Hook then filed the instant appeal. He argues (1) that the trial court erred when it permitted the Commonwealth to attack the credibility of his testimony by showing prior inconsistent statements made at the time of his arrest; (2) that trial counsel was ineffective regarding his handling of pre-trial identification procedures alleged to be unduly suggestive; and (3) that trial counsel was ineffective for failing to challenge three jurors who had signed an anti-rape petition and for failing to investigate adequately appellant's claim of alibi. The first issue has already been litigated finally; the remaining issues are lacking in merit. Accordingly, the order denying relief will be affirmed.
The Commonwealth's use of appellant's post arrest statement for the purpose of impeaching his testimony at trial was argued on direct appeal and decided adversely to him. That issue, therefore, has been finally litigated and may not be raised collaterally in a P.C.H.A. proceeding. Commonwealth v. Lewis, 278 Pa. Super. 35, 37-38, 419 A.2d 1342, 1344 (1980); Commonwealth v. Gardner, 250 Pa. Super. 86, 91, 378 A.2d 465, 468 (1977).
In order to comprehend fully the meritless nature of appellant's challenge to counsel's stewardship regarding appellant's pre-trial identification, it is essential that one be aware of the facts. The testimony at trial showed that the victim, a sixty-nine year old widow, was knocked to the ground when appellant struck her on the head with a pistol. Thereafter, he struck her at least three more times and inflicted lacerations requiring nine sutures to close. He dragged her into the house, where she was bound, gagged, undressed, threatened and indecently assaulted. An attempted rape failed of fruition because of appellant's impotency. He then threw the widow into a closet, barricaded it, and ran away with her money and pocketbook. She managed
[ 300 Pa. Super. Page 185]
to free herself and call a friend who summoned police. She positively identified appellant as her assailant, having seen him on six or seven prior occasions.
Appellant's counsel filed a pre-trial motion to suppress the victim's identification testimony because of an allegedly suggestive confrontation at the preliminary hearing; but this motion was denied after hearing. Appellant contended at his P.C.H.A. hearing that counsel had been ineffective (a) for failing to request a pre-trial line-up and (b) for failing to preserve the suppression issue on direct appeal. Trial counsel testified that he did not argue the suppression issue on appeal because it lacked merit and ...