No. 112 Harrisburg 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Dauphin County at No. 380, (A), (B), C.D.1978.
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Cavanaugh, Wickersham and Montemuro, JJ. Cavanaugh, J., concurs in the result.
[ 313 Pa. Super. Page 383]
This procedurally tangled case arises out of Haywood Wilkerson's challenge to his conviction of voluntary manslaughter and other offenses. On March 4, 1978, Wilkerson was arrested and charged with criminal homicide, aggravated assault, attempted murder and unlawful carrying of a firearm. The case against Wilkerson was tried to the Honorable William W. Caldwell and a jury; he was found guilty of voluntary manslaughter, carrying a firearm without a license and aggravated assault.
No post-trial motions were filed on Wilkerson's behalf and on August 24, 1978, Wilkerson was sentenced to an aggregate term of ten to twenty years imprisonment. Wilkerson filed a pro se petition for modification of sentence nunc pro tunc ; this petition was denied on September
[ 313 Pa. Super. Page 38421]
, 1978. Next, Wilkerson filed a pro se petition under the Post Conviction Hearing Act. Counsel was appointed for Wilkerson and counsel's amended PCHA petition was denied without a hearing. From this decision an appeal was taken to the Pennsylvania Supreme Court, the case is Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980).
In an opinion by then Chief Justice Eagen the court reversed and remanded. The court noted that Wilkerson's claim for post conviction relief was based on alleged ineffectiveness of trial counsel; the allegations of ineffectiveness included counsel's failure to file post-verdict motions and an appeal. The denial of PCHA relief was reversed because trial counsel failed to protect Wilkerson's appeal rights and because Wilkerson's allegations of ineffectiveness required a hearing.
On November 25, 1980, Wilkerson's nunc pro tunc motions for a new trial and in arrest of judgment were filed. A hearing on post-trial motions was held on February 5, 1981 before Judge Caldwell. Testimony was taken at the hearing from trial counsel and Wilkerson concerning counsel's conduct of the trial and post-trial proceedings.
Judge Caldwell denied Wilkerson's post-trial motions on March 26, 1981 and reinstated Wilkerson's original sentence. Wilkerson filed a timely notice of appeal.
The facts underlying Wilkerson's convictions may be summarized as follows. At trial, an officer of the Harrisburg Police Department testified that on March 4, 1978 he responded to a call and found two victims of a shooting; the victims were Robert Bruton and Neil Bruton. Haywood Wilkerson was taken into custody and given Miranda warnings. Despite being warned of his right to remain silent, Wilkerson told the police that he shot the two victims after he had been struck in the face. The officer further testified that he went to the hospital ...