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COMMONWEALTH PENNSYLVANIA v. JAMES B. MCKNIGHT (02/04/83)

filed: February 4, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES B. MCKNIGHT, APPELLANT



No. 2817 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, Nos. 20, 22, 23, December Term, 1974.

COUNSEL

Marilyn J. Gelb, Philadelphia, for appellant.

Gaele McGlaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Rowley, McEwen and Montemuro, JJ.

Author: Montemuro

[ 311 Pa. Super. Page 462]

In the present case, we are faced with the difficult procedural question of the extent of this court's power to fashion relief when a determination is made, in an appeal from on adverse order in a collateral attack on a judgment of sentence under the Post-Conviction Hearing Act*fn1 [hereinafter PCHA], that appellant was denied his appellate rights due to ineffectiveness of counsel. Specifically, whether this court, once a determination has been made that appellate rights were denied and that appellant is entitled to an appeal nunc pro tunc, can decide appellant's other claims as if they were before the court on the nunc pro tunc appeal, and not on the collateral attack appeal. We find that in the limited circumstances of this case, we should resolve appellant's claims without further remand. To do

[ 311 Pa. Super. Page 463]

    otherwise would make a mockery of the oft-stated concept of "judicial economy."

Appellant, James B. McKnight, brings this appeal from the order of the lower court denying relief pursuant to the PCHA. Appellant contends that counsel was ineffective in failing to preserve the appellate rights of the appellant by not filing an appeal; in failing to file a timely motion to dismiss under Pa.R.Crim.P. 1100; in failing to preserve for appeal an objection to prejudicial remarks by the trial judge; and in failing to preserve for appeal an objection to the trial court's charge to the jury regarding the elements of conspiracy. We find that (1) appellant was denied his right to appeal through the ineffectiveness of counsel, and (2) appellant's other claims lack merit. Accordingly, we reverse in part and affirm in all other respects the order of the lower court.

James B. McKnight was arrested on November 8, 1974 and following the denial of pre-trial motions, a jury trial was conducted. The appellant was found guilty of robbery,*fn2 conspiracy,*fn3 and possession of an instrument of crime.*fn4 Appellant's post-trial motions were denied and he was sentenced to five (5) to fifteen (15) years imprisonment on the robbery charge. No direct appeal was taken from the judgment of sentence.

Subsequently, appellant, without the aid of counsel, attempted to avail himself of post-conviction relief. On May 11, 1976, appellant filed a pro se PCHA petition, which was denied without a hearing. On October 26, 1976, appellant filed a second pro se PCHA petition, which was also denied without a hearing. Appellant then filed a pro se petition for allowance to file an appeal nunc pro tunc in this court, which was denied in a per curiam order. Appellant then sought allocatur to the Pennsylvania Supreme Court which issued a per curiam order to the trial court for appointment

[ 311 Pa. Super. Page 464]

    of counsel to assist in the filing of a new PCHA petition. An amended petition was filed asserting essentially the ...


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