No. 2278 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Trial Division-Criminal Section, of Philadelphia County at No. 02-71, 285-286.
Warren R. Hamilton, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Brosky and Wieand, JJ.
[ 324 Pa. Super. Page 308]
This case comes to us after the Honorable Edward J. Blake of the Philadelphia County Court of Common Pleas denied appellant Charles Dockins' petition for relief under the Post Conviction Hearing Act (PCHA).*fn1 Dockins was arrested in December of 1970 and charged with aggravated robbery, aggravated assault and battery, assault with intent
[ 324 Pa. Super. Page 309]
to kill, firearms violations, and burglary. A suppression motion was heard and denied; the case proceeded to trial before the Honorable Edward Rosenwald and a jury. Dockins was convicted on all of the aforementioned charges.
Post-verdict motions were argued and denied. On August 24, 1972, Charles Dockins was sentenced to a twenty to forty-seven year term of imprisonment. No timely direct appeal was taken from this sentence but Dockins filed a PCHA petition in March 1973. The petition was denied without a hearing and a counseled appeal was taken to this court. In Commonwealth v. Dockins, 230 Pa. Super. 271, 326 A.2d 505 (1974), we noted that Dockins argued only that the crime of burglary merged into the crime of robbery and that the trial judge erred in imposing consecutive maximum sentences for both crimes. Dockins' contention was rejected and the judgment of sentence affirmed. The Supreme Court of Pennsylvania denied a petition for allowance of appeal.
Dockins filed another PCHA petition on February 24, 1977; this petition was amended on November 5, 1979. PCHA hearings were held and Dockins' second PCHA petition was denied on July 29, 1981. This appeal timely followed.*fn2
[ 324 Pa. Super. Page 310]
The facts underlying Dockins' convictions were ably summarized by Judge Van der Voort in Commonwealth v. Dockins, supra:
At the trial, the Commonwealth presented evidence which would establish, if believed, that on December 23, 1970, at approximately 4:45 P.M., appellant entered the office of his optometrist, Dr. Sheldon Greene, carrying a gun. Appellant took twenty-five ($25.00) dollars from the doctor, then shot him once in the head. Apparently the only reason appellant failed to kill the doctor was that the gun misfired the next few times he pulled the trigger. Appellant then dragged the doctor into an adjoining area and beat him repeatedly about the head and arms with a fifty-inch metal reading-rod, stopping only when he heard a noise at the door. As a result of this brutal attack, the doctor remains permanently blind in one eye, and does not have full use of one of his hands.
Id., 230 Pa. Superior Ct. at 273, 326 A.2d at 506.
The first of Dockins' many issues is:
Whether the failure of trial counsel to file an appeal from the judgment of sentence of the lower court constituted ...