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COMMONWEALTH PENNSYLVANIA v. WALTER HILL (07/30/82)

filed: July 30, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER HILL, APPELLANT



No. 702 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 1058 October Term, 1972.

COUNSEL

Richard J. Hodgson, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Price, Cavanaugh, and Watkins, JJ.

Author: Price

[ 302 Pa. Super. Page 379]

Appellant, Walter Hill, was convicted of burglary,*fn1 robbery,*fn2 aggravated assault and battery,*fn3 and conspiracy*fn4 on May 16, 1973. The conviction was appealed to this court and affirmed on December 1, 1975, except for a modification from a twenty-three and one half to forty-seven year sentence to a twenty-two and one half to forty-five year sentence. Commonwealth v. Hill, 237 Pa. Superior Ct. 543, 353 A.2d 870 (1975). On December 4, 1978, appellant filed a petition seeking relief under the Post Conviction Hearing Act.*fn5 The trial court dismissed appellant's petition without a hearing on the merits, finding that appellant's claims were "patently frivolous." Slip op. at 2. Appellant contends that it was error to dismiss his petition without first granting him a hearing on the merits of his claim of ineffectiveness of trial counsel. We agree and thus remand for a hearing limited, however, to the issue whether counsel was derelict in failing to seek a determination by the court regarding the admissibility of appellant's prior convictions.

At approximately 6:00 p. m. on December 11, 1972, two men robbed Molettiere's Market in Lansdale, Montgomery County. During the robbery the men beat the proprietor and a sixty-six year old patron. Two men matching the description of the robbers, appellant and Walter Burgess, were apprehended approximately one hour later in the vicinity of the market.*fn6 At the time of his arrest appellant was carrying the same amount of money as had been stolen from the market.

[ 302 Pa. Super. Page 380]

Appellant was represented both at trial and on appeal by counsel from the Montgomery County Public Defender's Office. The question of ineffectiveness of trial counsel was first raised in appellant's petition for relief under the Post Conviction Hearing Act [hereinafter PCHA]. "Because of the inherent conflict of loyalties to one's client on the one hand and to one's associates on the other," an attorney from the same office may be reluctant to raise the issue of ineffectiveness of trial counsel. Commonwealth v. Prowell, 249 Pa. Superior Ct. 435, 439, 378 A.2d 374, 376 (1977). Ineffective assistance of counsel, therefore, must be asserted at the first stage at which the party is represented by counsel not associated with the same public defender's office. Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979); Commonwealth v. Beasley, 249 Pa. Superior Ct. 162, 375 A.2d 809 (1977). Since appellant was first represented by different counsel in the post conviction proceedings, and because the issue was first raised in his petition for PCHA relief, his claim is properly before us.

"It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest." Commonwealth v. Musi, 486 Pa. 102, 107, 404 A.2d 378, 380 (1979), citing Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Yocham, 483 Pa. 478, 397 A.2d 766 (1979). In reviewing the facts we are "always mindful of the presumption that counsel is competent." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 603, 235 A.2d 349, 352 (1967). "[Appellant] has the burden to show prejudice. That determination depends on whether adequate representation was actually provided." Commonwealth v. Garcia, 478 Pa. 406, 416-17, 387 A.2d 46, 51 (1978).

[ 302 Pa. Super. Page 381]

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable Page 381} basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.

Commonwealth v. Sherard, 483 Pa. 183, 190-91, 394 A.2d 971, 975 (1978), quoting Maroney, 427 Pa. at 604, 235 A.2d at 352 (emphasis in original). Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 ...


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