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COMMONWEALTH PENNSYLVANIA v. EDWARD LEROY KLINGER (09/23/83)

submitted: September 23, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD LEROY KLINGER, APPELLANT



No. 40 Harrisburg 1982, APPEAL FROM THE PCHA ORDER OF DECEMBER 8, 1981 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, CRIMINAL NO. 231, (A), (B), C.D. 1978

COUNSEL

John Francis Lyons, Harrisburg, for appellant.

Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Wieand, Cirillo and Johnson, JJ. Johnson, J., concurred in the result.

Author: Cirillo

[ 323 Pa. Super. Page 188]

This is an appeal from an order of the Court of Common Pleas of Dauphin County denying relief under the Post Conviction Hearing Act (PCHA).*fn1 Appellant pled guilty in 1978 to one count of involuntary deviate sexual intercourse and two counts of indecent assault, all arising from a single incident in the city of Harrisburg. Appellant is now before this Court for the second time challenging on numerous grounds the validity of his guilty plea.

FIRST APPEAL

On the evening of June 12, 1977, the victim of these crimes was home alone in her Harrisburg apartment. She answered her doorbell to find a stranger, who asked for a person unknown to her. The stranger asked to consult her telephone directory to look up his friend. After first refusing she said she would get the directory and turned to climb the steps to her apartment. The stranger followed her upstairs. After thumbing fruitlessly through the directory, the stranger engaged the victim in conversation. He began to ask about her personal life, and when she rebuffed his attempts to ask her out, became hostile. He ordered her into the bathroom of her apartment and forced her to undress by telling her he had a knife and making her touch what felt like a knife handle under his shirt. The stranger threatened to rape the victim if she did not cooperate. He fondled her breasts, then ordered her into the bedroom where he performed cunnilingus on her. He then made her fondle his penis, masturbated, and left.

[ 323 Pa. Super. Page 189]

In January of 1978, appellant Edward Klinger was arrested in Cumberland County and charged with robbery and indecent assault in connection with a sexual attack on a girl in a Cumberland County store. A lineup was arranged at the Cumberland County jail, with the victims of both the Dauphin County and Cumberland County assaults in attendance. Each picked Klinger out of the lineup as her assailant. Dauphin County authorities consequently charged Klinger with the June 12 crimes.

Arthur Dils, Esquire, was present at the lineup and represented Klinger on both sets of charges. At the preliminary hearings, Klinger entered pleas of not guilty.

The Cumberland County case went to trial by jury on May 22, 1978, and Klinger was convicted of robbery and indecent assault. These convictions are not directly involved in the present appeal, but the facts surrounding them relate to certain issues appellant raises.

On May 31, 1978, Klinger was brought to Dauphin County to stand trial on the charges that are the subject of this appeal. However, on June 1, 1978, Klinger appeared with counsel before Judge William Lipsitt and pled guilty to the charges. On September 18, 1978, Judge Lipsitt sentenced Klinger to concurrent state penitentiary terms of eight to twenty years for involuntary deviate sexual intercourse and one to two years on each indecent assault count.

Nine days later, now represented by court-appointed counsel Spero Lappas, Klinger filed motions to modify the most severe sentence and to challenge the validity of his guilty plea. Judge Lipsitt denied the motion to modify sentence but scheduled a hearing for November 30, 1978, on the motion challenging the plea.

At the hearing the defendant tried to establish that Dils's ineffective representation had prompted him to plead guilty involuntarily. Klinger's three basic complaints were that Dils had not adequately investigated a possible alibi defense, had not sought to suppress the victim's identifications of Klinger at the lineup and the preliminary hearing,

[ 323 Pa. Super. Page 190]

    and had pressured Klinger to plead guilty against his will. After listening to the testimony of five witnesses and the arguments of counsel, Judge Lipsitt denied Klinger's motion to withdraw the plea.

Klinger appealed to this Court, which affirmed in an opinion by Watkins, J. Commonwealth v. Klinger, 279 Pa. Super. 565, 421 A.2d 343 (1980) (allocatur refused).

THIS APPEAL

On December 17, 1980, Klinger mounted a second challenge to his guilty plea by filing a pro se petition under the Post Conviction Hearing Act. Judge Lipsitt granted leave to proceed in forma pauperis and appointed counsel to assist Klinger in post-conviction proceedings. On April 16 and 24, 1981, Klinger filed motions seeking new counsel on the ground that appointed counsel had done nothing beyond prepare a petition restating the original. The court refused the first request, but granted the second and appointed Peter Foster, Esquire.

Klinger filed pro se amendments to his PCHA petition on July 13 and September 14, 1981. On September 22, he filed a supplemental petition prepared by Foster.

On November 13, 1981, Klinger filed a pro se petition for writ of habeas corpus essentially restating the issue raised in his September 14 amendment to the PCHA petition. Judge Lipsitt dismissed the habeas corpus petition on jurisdictional grounds, and Klinger responded with a motion to vacate and reconsider order. Judge Lipsitt reconsidered, vacated his order, and entered another order dismissing the habeas corpus petition on the ground that the issues raised in it should have been, and had been, raised under the PCHA.

Meanwhile, on November 27, 1981, Klinger filed a pro se "motion for default judgment." The Commonwealth answered, and Judge Lipsitt dismissed the motion in an order dated December 3, 1981. The Commonwealth then filed an answer to Klinger's PCHA petition.

[ 323 Pa. Super. Page 191]

On December 8, 1981, Judge Lipsitt dismissed Klinger's PCHA petition on the basis of the Commonwealth's answer. The next day Klinger filed a pro se motion for reconsideration of the order of December 3, and Judge Lipsitt denied.

Klinger appealed the order of December 8 to this Court. On February 1, 1982, Klinger requested Judge Lipsitt to replace Attorney Foster with new counsel to prosecute the appeal, and the judge appointed John Lyons, Esquire.

Appellate counsel's brief spans fifty-two pages (in violation of Pennsylvania Rule of Appellate Procedure 2135(1)) to present for our review eleven issues whose statement alone requires nearly two pages (in violation of Pa.R.A.P. 2116(a)). Counsel thus continues Mr. Klinger's tradition of circumlocution in the courts, and we do not approve. For lack of a more appropriate sanction we choose to call attention to the remarks of Aldisert, J., quoted in the case of United States v. Hart, 693 F.2d 286, 287 n. 1 (3rd Cir. 1982):

With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two errors. I have said in open court that when I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.

I

The first substantive issue raised on appeal is that Attorney Foster provided ineffective representation in the proceedings below.

Mr. Foster's supplemental PCHA petition alleged, among other things, the invalidity of Klinger's guilty plea because of three alleged defects in the guilty plea colloquy.

[ 323 Pa. Super. Page 192]

There were prior proceedings in this case at which Klinger had the opportunity but failed to raise the issue of defects in the colloquy. The PCHA provides, at 19 P.S. § 1180-4(b), (c):

(b) For the purposes of this act, an issue is waived if:

(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and

(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

Since Klinger's petition did not offer to rebut the presumption that he knowingly and understandingly failed to raise earlier the defects in the colloquy, or to prove that his failure was justified by extraordinary circumstances, he was precluded from obtaining relief on this issue in the PCHA court. Id. § 1180-3(d).

On appeal Klinger asserts that Foster was ineffective for failing to allege the ineffectiveness of Mr. Dils and Mr. Lappas as extraordinary circumstances justifying Klinger's failure to raise the defective colloquy earlier.

Our task in cases of alleged ineffectiveness of counsel encompasses both an independent review of the record and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives. However, our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to ...


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