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COMMONWEALTH PENNSYLVANIA v. BERNARD JONES (06/04/82)

filed: June 4, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD JONES, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. BERNARD DICKERSON, APPELLANT



No. 1427 Philadelphia, 1980, No. 1664 Philadelphia, 1980, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Chester County at Nos. 076876 and 076776.

COUNSEL

Thomas G. Gavin, West Chester, for appellants.

Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Cavanaugh, Montemuro and Popovich, JJ. Montemuro, J., concurs in the result.

Author: Popovich

[ 300 Pa. Super. Page 340]

This case involves appeals nunc pro tunc from the judgments of sentence, which was granted by this Court in a Per Curiam order dated March 24, 1980 [No. 499 Misc.Dkt. No. 11], to the appellants, Bernard Jones and Bernard Dickerson. These two appeals were then consolidated by our Court for briefing and argument. We affirm.

On September 15, 1976, Jones was adjudged guilty by a jury of theft by unlawful taking or disposition, three counts of simple assault, two counts of robbery, burglary, recklessly endangering another person, unauthorized use of a vehicle and criminal conspiracy. Dickerson was tried in the same proceeding and, like his counterpart, was found guilty of theft by unlawful taking, three counts of simple assault, two counts of robbery, one count of rape, burglary, recklessly

[ 300 Pa. Super. Page 341]

    endangering another person, unauthorized use of a vehicle, violation of the Controlled Substance, Drug, Device and Cosmetic Act and criminal conspiracy. Combined post-trial motions were filed on behalf of the appellants and denied by Opinion of the trial court on November 19, 1976. Each appellant was sentenced to a term of five to ten years imprisonment. No appeals were taken.

In March of 1979, appellants filed pro se Post-Conviction Hearing Act (PCHA) Petitions,*fn1 alleging, inter alia, the denial of their right to competent counsel. In light of the claim made, and given the fact that appellants were represented by counsel from the public defender's office of Chester County at every stage of the litigation, the trial court appointed private counsel to assist the appellants. See Commonwealth v. Massie, 294 Pa. Super. 115, 118, 439 A.2d 777, 778 (1982) ("'[A] PCHA petitioner, represented by court-appointed counsel and alleging ineffective assistance of trial counsel, may not be represented by an attorney from the office with which the allegedly ineffective attorney was associated.'" (Citations omitted)).

A hearing was scheduled. At the commencement of said proceeding, "with regard to one part of the application," the attorneys entered into a "stipulation[ ] for the Court[,]" regarding the question of appeal. On this point, both attorneys agreed that appellants communicated their desire to appeal to the attorney representing them at the sentencing. However, despite sentencing counsel's submission of an inner office memo instructing the appellate division of the public defender's office of appellants' intentions, no appeals were filed. (N.T. 11/23/78, at 3-4) In the remaining portion of the hearing, appellants testified that they felt trial counsel was ineffective because they "didn't have enough time to talk with him." (N.T. 11/23/78, at 18 and 25) Bernard Jones also testified that counsel failed to secure certain witnesses, which he admitted "having no idea" as to their identity or whereabouts, who would have corroborated

[ 300 Pa. Super. Page 342]

    his story of having shopped for an automobile on the day of the incident. (N.T. 11/23/78, at 20) After the hearing, the PCHA court determined that appellants had been denied their right to a direct appeal. The court therefore properly refused to consider the other claims,*fn2 Commonwealth v. Stackpole, 275 Pa. Super. 255, 418 A.2d 709 (1980), and entered an order dated April 19, 1979, granting appellants the right to file a direct appeal nunc pro tunc to this Court. We, in turn, granted appellants' "Petition for Allowance to Appeal Nunc Pro Tunc" by Per Curiam order issued on March 24, 1980. Pursuant to that order, appellants filed in the court ...


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