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COMMONWEALTH PENNSYLVANIA v. LARRY D. JENKINS (04/27/83)

submitted: April 27, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
LARRY D. JENKINS, APPELLANT



No. 1044 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Cumberland County, Criminal Division at No. 813 of 1977.

COUNSEL

Murrel R. Walters, III, Mechanicsburg, for appellant.

John Michael Eakin, Assistant District Attorney, Carlisle, for Com., appellee.

Rowley, Wieand and Popovich, JJ.

Author: Popovich

[ 316 Pa. Super. Page 168]

This is an appeal from an Order of the Court of Common Pleas of Cumberland Court (per Judge Sheely) denying appellant's, Larry D. Jenkin's, Post-Conviction Hearing Act

[ 316 Pa. Super. Page 169]

(PCHA) Petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We affirm.

The sole contention raised by the appellant on appeal concerns "[w]hether the Bill of Information dated November 16, 1977, filed against [him], and signed by Assistant District Attorney J. Michael Eakin, was void ab initio because it was not signed by the District Attorney?" (Appellant's Brief at 3)

The facts reveal the following: By a complaint dated October 14, 1977, appellant was charged with the attempted murder of Sergeant John Durham, a guard at the State Correctional Institution in Lower Allen Township, Cumberland County, Pennsylvania. Appellant was accused of taking an electrical cord with a slip knot on one end and putting it around the neck of Sergeant Durham and attempting to cause his death in "J" Ward of the State Correctional Institution at Camp Hill. Counsel, C. Roy Weidner, Jr., of the law firm of Myers, Myers, Flower and Johnson, was appointed by the court to represent the appellant. After a preliminary hearing, a prima facie case was found and an Information was filed on November 16, 1977, and signed by Assistant District Attorney J. Michael Eakin.

The only pre-trial matters filed by appellant's counsel consisted of an "Application For Continuance" so that appellant could receive psychiatric evaluation to determine his competency to stand trial. The Application was granted and appellant was found competent. Following a trial by jury, in which appellant was adjudged guilty as charged, post-trial motions were filed and denied by a court en banc. An appeal from the judgment of sentence was affirmed by this Court in Commonwealth v. Jenkins, 271 Pa. Super. 614, 419 A.2d 198 (1979), and a petition for allowance of appeal was denied by the Pennsylvania Supreme Court on October 22, 1979 [No. 4499 Allocatur Docket, Eastern District]. During all stages of the litigation, Attorney Weidner remained appellant's counsel.

On September 3, 1980, appellant filed a pro se PCHA petition requesting the appointment ...


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