No. 96 E.D. Appeal Dkt. 1982, Appeal from the Order of the Superior Court at No. 2129, Philadelphia, 1980, dated April 30, 1982, reversing the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, denying Defendant's Petition for Relief under the Post-Conviction Hearing Act and Remanded to that Court for a Hearing on a Claim arising from Defendant's Conviction for Aggravated Robbery, at No. 391, August Session, 1965 and Carrying a Concealed Deadly Weapon, at No. 390, August Session, 1965.
Eric B. Henson, Deputy Dist. Atty., Ronald Eisenberg, Philadelphia, for appellant.
David L. Pollock, Philadelphia (court-appointed), for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., concurs in the result, as does Zappala, J. Flaherty, J., concurs in the result and files a concurring opinion.
On July 15, 1965, a drugstore at 1102 Girard Street in Philadelphia, operated by Lillian Baker and her husband, was robbed at gunpoint. On July 18, 1965, defendant, Lloyd Parker was arrested by the Philadelphia Police and driven back to the scene of the crime. According to Mrs. Baker's testimony at trial, she immediately recognized defendant as the robber, but was too afraid to identify him to his face (N.T. Trial 17, 19-20, 22, 85-86). Eight days later however, at the preliminary hearing, the victim positively identified the defendant as the assailant (N.T.P.H. 7/23/65 at 6, 28). At defendant's trial, the victim and two other individuals, present in the store at the time of the robbery, all identified defendant. The jury found defendant guilty of aggravated robbery and carrying a concealed deadly weapon.
The trial judge, the Honorable Victor J. DiNubile, denied post-verdict motions and sentenced defendant to five (5) to ten (10) years imprisonment. A direct appeal by defendant was denied by the Superior Court in 1966. Commonwealth v. Parker, 208 Pa. Super. 760, 223 A.2d 136 (1966), allocatur denied, No. 136-A Miscellaneous Docket No. 17 (PA filed 8/10/70). Defendant subsequently filed three petitions for relief under the Post-Conviction Hearing Act (hereinafter "P.C.H.A.") all of which were denied.
On June 3, 1976, defendant filed his fourth P.C.H.A. petition. Judge DiNubile dismissed the petition without a hearing. Defendant appealed this dismissal to the Superior Court. In a brief on the merits, filed in 1980, defendant alleged that the confrontation between the defendant and the victim of the robbery was impermissibly suggestive that the victim's subsequent identification should have been suppressed and that trial counsel, as well as all later counsel were ineffective for not raising this issue. On April 30, 1982, a panel of the Superior Court reversed and remanded for an evidentiary hearing on this fourth P.C.H.A. petition.
The Commonwealth, appellant herein, petitioned this Court for allowance of appeal and we granted allocatur.
In this appeal, appellant raises a number of issues. Succinctly stated they are: whether defendant, seventeen (17) years after his trial and four (4) P.C.H.A. petitions later, is entitled to a hearing on a claim which is not relevant to his guilt or innocence, and which will make no difference to the outcome of his trial and whether the Superior Court may order a remand for a post-conviction evidentiary hearing on prior counsel's representation although the record indicates counsel acted reasonably. We answer all the aforementioned questions in the negative.
The trial court dismissed defendant's fourth P.C.H.A. petition after finding that the issue raised had already been litigated. Pursuant to the Post-Conviction Hearing Act, 42 Pa.C.S.A. § 9544, an issue is waived if previously litigated. The Superior Court held that the record did not support this finding. Additionally, the Superior Court held that defendant's assertion of ineffectiveness of counsel provided an "extraordinary circumstance" which justified the failure to ...