No. 1270 Philadelphia 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 228-229 August 1969.
Chester T. Cyzio, Philadelphia, for appellant.
Sarah Vanderbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Spaeth, Cavanaugh, Wickersham, Brosky, Beck and Johnson, JJ. Spaeth and Brosky, JJ., file concurring opinions.
[ 313 Pa. Super. Page 257]
This is an appeal from an order denying appellant Brown's petition filed under the Post Conviction Hearing Act*fn1 (hereinafter PCHA). We affirm. The pertinent facts are as follows.
On July 14, 1969, two Philadelphia police officers observed Brown leaving the scene of a burglary with a box containing several items, including a television set. When the officers asked Brown to stop, he dropped the box and
[ 313 Pa. Super. Page 258]
ran. Brown was stopped and arrested; he subsequently confessed to committing the burglary. A motion to suppress evidence was filed on September 18, 1969 and denied on October 16, 1969 by the Honorable Vito F. Canuso.
On September 22, 1970, Earl Brown was convicted, after a non-jury trial, of the burglary, and of larceny and possession of burglary tools. Post-verdict motions were denied and Brown was sentenced to a term of imprisonment which, in total, was to be not less than two years nor more than ten years, to be served after another sentence he was already serving. Brown then obtained new counsel and appealed to this court, challenging only the sufficiency of the evidence against him. Judgment of sentence was affirmed without a published opinion in Commonwealth v. Brown, 220 Pa. Super. 704, 283 A.2d 88 (1971).
On January 26, 1978, Brown filed an uncounselled PCHA petition alleging the ineffectiveness of his trial and appellate counsel. New counsel was appointed to represent Brown and he filed an amended PCHA petition. After a hearing, the petition was denied. Again, new counsel for Brown was appointed; this appeal followed.
Appellant Brown frames the issues presented in this appeal as follows:
I. Was appellant denied the effective assistance of counsel in the trial court where counsel failed to preserve for appellate review the denial of defendant's motion to suppress his statement and certain physical evidence?
II. Was defendant likewise denied the effective assistance of counsel on both his direct appeal and hearing under the Post Conviction Hearing Act where neither appellate nor P.C.H.A. counsel alleged trial counsel's effectiveness ...