No. 291 Harrisburg 1981, APPEAL FROM THE PCHA ORDER OF SEPTEMBER 30, 1981, IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, CRIMINAL NO. 894, 895 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 111]
This is an appeal from an Order of the Court of Common Pleas of Dauphin County, dated September 30, 1981, denying the appellant's supplemental petition for relief pursuant to the Post Conviction Hearing Act.
[ 315 Pa. Super. Page 112]
On September 9, 1974, appellant Vincent Courts, after trial by jury, was convicted of murder in the first degree*fn1 for the killing of Ralph Jones, and attempted murder*fn2 of Alan Jones arising from the same incident. Post-trial motions were filed, argued and denied. On June 12, 1975, the appellant was sentenced to a term of life imprisonment on the murder conviction, and to a term of not less than five nor more than ten years on the conviction of attempted murder. A direct appeal was filed, and the Supreme Court of Pennsylvania affirmed the convictions.*fn3
On February 2, 1981, appellant filed a petition pursuant to the Post Conviction Hearing Act (PCHA).*fn4 The PCHA Court appointed PCHA counsel on February 3, 1981. On July 16, 1981, appellant filed a supplemental petition under the Post Conviction Hearing Act. The PCHA Court denied appellant's petition for relief without a hearing. On September 29, 1981, appellant filed a motion for the appointment of new counsel and a motion to remove the court appointed PCHA attorney from his case. These motions were denied. Appellant, on October 13, 1981, filed on his own behalf a notice of appeal from the denial of his PCHA petition. On October 28, 1981, the PCHA Court appointed new counsel to represent the appellant and this appeal followed.
Appellant has raised four issues on this appeal: (1) whether an individual charged with murder has an absolute right to the severance of the other charges for separate trials; (2) whether the failure of trial counsel to timely move for a severance of the murder and attempted murder indictments constituted ineffective assistance of counsel; (3) whether the application of a rubber-stamp facsimile signature
[ 315 Pa. Super. Page 113]
on the indictments rendered them null and void; and (4) whether the failure of trial counsel to object to the use of a rubber-stamp facsimile signature on appellant's indictment constituted ineffective assistance of counsel.
As to the first issue raised, appellant contends that the consolidation for trial of the indictments for murder and attempted murder was in violation of Pa.R.Crim.P. Rule 219.*fn5 This rule dealt specifically with the joinder and severance of offenses and defendants in indictments. It provided that,
Rule 219. Joinder of Offenses and Defendants in Indictments
(a) Where murder is alleged in an indictment, no other counts may be joined in the indictment except voluntary and involuntary manslaughter.
(b) Two or more offenses of any grade, other then murder, may be charged in the same indictment if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. There shall be a separate count for each offense charged.
(c) Subject to the limitations of clause (b), two or more defendants may be joined in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. They may be charged in one or more counts together or separately. All defendants need not be charged in each count.
(d) The court, of its own motion, or on application of a party, may order separate trials of counts, grant a severance as to any defendant, or ...