No. 292 Harrisburg 1981, APPEAL FROM THE PCHA ORDER OF SEPTEMBER 30, 1981 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, CRIMINAL NO. 896 CD 1974
John Francis Lyons, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Wickersham, Cirillo and Watkins, JJ.
[ 315 Pa. Super. Page 126]
This is an appeal from the Order of the Court of Common Pleas of Dauphin County, dated September 30, 1981, denying the appellant's supplemental petition for relief under the Post Conviction Hearing Act (PCHA).*fn1
On March 24, 1974, appellant was apprehended by three members of the Harrisburg Police Department pursuant to
[ 315 Pa. Super. Page 127]
a warrant for his arrest for attempted murder.*fn2 The appellant was taken into custody and brought by automobile to the Harrisburg City Hall parking lot. Upon exiting the unmarked police vehicle, the appellant pulled out a gun and pointed it at the head of one of the police officers. At that point, one of the other officers shot the appellant, and he was subdued without further incident. The appellant was charged with aggravated assault.*fn3
On March 19, 1975, appellant was tried and convicted of aggravated assault by a jury and sentenced to a term of imprisonment of not less than five nor more than ten years at a state correctional institution. No post-trial motions were filed, nor was a direct appeal taken. However, some six years after his conviction, appellant filed a petition for post-conviction relief pursuant to the Post Conviction Hearing Act. The PCHA Court appointed new counsel, and on July 16, 1981, appellant filed a supplemental petition for relief under the Act. On October 1, 1981, the supplemental petition was denied by the PCHA Court without a hearing. On October 13, 1981, appellant filed on his own behalf a notice of appeal from the denial of his PCHA petition and a motion for the appointment of new counsel for this appeal. The PCHA Court appointed new counsel on October 28, 1981, and this appeal followed.
Appellant contends that his trial counsel was ineffective for (1) failing to conduct voir dire examination of prospective jurors or to exercise peremptory challenges; (2) failing to object to the use of a rubber-stamp facsimile signature of the district attorney on the indictment charging him with aggravated assault; and for (3) failing to file post-trial motions or to take an appeal. We affirm the determination of the PCHA Court.
[ 315 Pa. Super. Page 128]
The test for ascertaining whether a defendant has been denied effective assistance of counsel is well established. ". . . [C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Moreover, in order to be entitled to relief under a theory of ineffective assistance of counsel, it must appear that counsel's action or inaction was prejudicial to the defendant. See: Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Gordon, 254 Pa. Super. 267, 385 A.2d 1013 (1978). When it cannot be determined from the record whether counsel acted pursuant to a reasoned course, the proper remedy is to remand the record for an evidentiary hearing on that issue. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). However, where it is ...