No. 33 W.D. Appeal Docket, 1983, Appeal from the Order of the Superior Court of Pennsylvania, dated January 8, 1982, at Number 533, Pittsburgh, 1981 Term, affirming the Judgment of the Butler County Court of Common Pleas dated April 9, 1981 at Number 700 of 1977, Butler County Pennsylvania, Criminal Division,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., dissents and would direct appointment of counsel to prosecute the appeal on appellant's behalf.
Appellant Edward Eugene Lohr appeals pro se from the affirmance by Superior Court*fn1 of the Court of Common Pleas' dismissal, without hearing, of his petition under the Post Conviction Hearing Act (PCHA),*fn2 challenging the legality of the imposition of a separate sentence for each of the crimes of which he was convicted, statutory rape and attempted murder. In his appeal to this Court, appellant additionally seeks reversal of his convictions on grounds of ineffective assistance of both post-conviction and trial counsel, claims apparently raised for the first time.*fn3 We affirm.
On Halloween night, 1977, the 13 year old victim was hitchhiking with a female companion. They accepted a ride offered by appellant and three other men. The victim was eventually taken to a cottage, where she engaged in various sexual acts with appellant that night and the following day. The evening of that second day, she was taken into a
wooded area where she was stabbed in the chest and back by appellant a number of times with an ice pick and hit over the head with a hatchet by appellant's co-actor Chester Fulton. She was abandoned but managed to seek aid and recovered to testify at trial. Appellant was convicted of statutory rape, 18 Pa.C.S.A. § 3122, and attempted murder, 18 Pa.C.S.A. § 2502. Appellant was sentenced for each conviction to a term of imprisonment of not less than five years nor more than ten years, sentences to run consecutively.
Appellant argues that Superior Court erred in affirming the summary dismissal of his first PCHA petition which asserted that the doctrine of merger in sentencing was applicable to these crimes. The Post Conviction Hearing Act provides that the court, when presented with a petition under the act, shall order a hearing unless the petition presents a claim which is "patently frivolous," in which case the petition may be dismissed without hearing. Post Conviction Hearing Act, supra, § 1180-9. The doctrine upon which appellant relies provides that where the crimes arise from the same act and where one crime necessarily involves another, the crimes have merged and a defendant may not be sentenced separately for each crime. Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981). On the evening of October 31 and the day of November 1, appellant engaged in sexual relations for which he was convicted of statutory rape. In the early evening of November 1, he inflicted wounds with a deadly weapon, an ice pick, upon a vital area of the victim's body, her chest and back, for which he was convicted of attempted murder. The crimes do not arise from the same act and, thus, appellant's argument is "patently frivolous" and the Superior Court affirmance of the dismissal by the Post Conviction court without hearing was correct.
The first of appellant's allegations of ineffective assistance of counsel presented to this Court is a layered claim charging that post conviction counsel was ineffective for
failing to allege the ineffectiveness of trial counsel*fn4 due to his failure to object to a variance between the information filed charging rape under 18 Pa.C.S.A. § 3121 and the jury verdict finding appellant guilty of statutory rape, 18 Pa.C.S.A. § 3122. The rape information filed in this case read:
THE DISTRICT ATTORNEY of BUTLER COUNTY by this information charges that on or about the 31st day of October, 1977, and November 1, 1977, in Jackson Township, the defendant above named, in the County of Butler, did on or about said dates in Jackson Township, Butler County, Pennsylvania, in company with JOHN LANG, CHESTER FULTON and ROBERT HARRIS, willfully and unlawfully, knowingly and intentionally engage in sexual intercourse with one, Irene Strothers, age 13, by forcible compulsion or threat of same, on October 31, 1977 and November 1, 1977, the said incidents taking place in a cottage in said Township.
all of which is against the Act of Assembly and the Peace and dignity of the Commonwealth of ...