NO. 1634 PHILA. 1981, Appeal from the PCHA Order in the Court of Common Pleas of Philadelphia County, Criminal No. 752-753 1/2 Nov. 1972
Elaine G. DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Spaeth, President Judge and Hester and Lipez, JJ.
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This appeal is from an order summarily dismissing appellant's petition under the Post Conviction Hearing Act
[ 321 Pa. Super. Page 547]
(PCHA).*fn1 We vacate the order and remand for proceedings consistent with this opinion.
On February 13 and 14, 1973, appellant was tried before a judge sitting without a jury, and was found guilty of aggravated robbery and assault and battery. Appellant's post-verdict motions were denied, and he was sentenced to 3 to 15 years in prison for aggravated robbery; sentence for assault and battery was suspended.
Appellant appealed the judgment of sentence, alleging that he had been denied due process of law because the Commonwealth had failed to disclose to the defense that the victim would change his testimony at trial from that given at the preliminary hearing. At the preliminary hearing the victim testified that appellant's co-defendant had attacked him while appellant stood by; at trial the victim testified that appellant had attacked him while appellant's co-defendant stood by. This court held that the prosecution had not contravened the standard set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and affirmed the judgment of sentence. Commonwealth v. Hicks, 228 Pa. Super. 76, 324 A.2d 397 (1974).
On January 14, 1981, appellant filed a pro se PCHA petition, requesting a new trial because his trial counsel had been ineffective. Appellant alleged that counsel should have interviewed the victim or conducted discovery of the prosecution, or both, and that if he had, he would not have been surprised at trial by the victim's changed testimony, and his pre-trial and trial tactical decisions would have been different. Appellant further alleged that he was without financial resources and requested that the trial court appoint an attorney to represent him.
By opinion and order dated June 2, 1981, the trial court denied appellant's petition ...