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COMMONWEALTH PENNSYLVANIA v. STEPHEN LUTHER EVANS (06/01/84)

filed: June 1, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
STEPHEN LUTHER EVANS, APPELLANT



No. 803 Philadelphia 1982, Appeal from the P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 1216-1219 November Term 1976.

COUNSEL

Stephen Evans, in propria persona.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Brosky and Hoffman, JJ.

Author: Wickersham

[ 329 Pa. Super. Page 339]

This is a pro se appeal from an order of the Court of Common Pleas of Philadelphia County denying appellant's Post Conviction Hearing Act petition.

The history behind this appeal is both lengthy and confusing. Appellant, Stephen Evans, was arrested in November of 1976 and charged with aggravated assault and related offenses. These charges stemmed from an incident in September of 1976, in which appellant allegedly shot the victim in the chest on the front steps of the victim's house. On January 20, 1977, appellant appeared for trial, represented by the first of a long line of attorneys. Appellant waived his right to a trial by jury, and his case proceeded before the Honorable Julian F. King. When appellant failed to return to court following the luncheon recess, a bench warrant was issued. Appellant was apprehended three months later and trial resumed on May 2, 1977 before Judge King. Appellant did not take the stand and appellant's counsel rested without presenting any witnesses, testimony, or closing statement. Appellant was found guilty of aggravated assault, recklessly endangering another person, and possession of an instrument of crime. No post-verdict motions were filed on behalf of appellant by his trial counsel.

On June 23, 1977, appellant was sentenced to imprisonment of one to two years for recklessly endangering another person, two to five years*fn1 for possession of an instrument of crime, and five to ten years for aggravated assault. Each sentence was to run consecutively; thus, appellant was sentenced to a total of eight to seventeen years imprisonment. No motion for resentencing was filed by trial counsel. On July 22, 1977, appellant, by his second attorney, appealed the above sentence.

[ 329 Pa. Super. Page 340]

Shortly thereafter, attorney no. 2 withdrew from the case, and attorney no. 3 was retained. This court remanded the case to the trial court "for a hearing for the correction of an illegal sentence without prejudice to his right to appeal." On April 18, 1978, the sentences were vacated and appellant was resentenced, following a hearing, to the following: one to two years for recklessly endangering another person, two to five years for possession of an instrument of crime (these two sentences to be concurrent), and four to ten years for aggravated assault, to be consecutive to the first two sentences. The new sentences totaled six to fifteen years. On May 11, 1978, appellant's counsel appealed the new sentences. While that appeal was pending, appellant filed a pro se petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., in which he alleged ineffectiveness of counsel.*fn2 That petition was dismissed as being premature, due to the pendency of the direct appeal. Shortly thereafter, however, the direct appeal was discontinued and appellant petitioned the lower court to reinstate his P.C.H.A. petition. This motion was granted on August 29, 1978.

At some point, attorney no. 3 withdrew from the case and attorney no. 4 was appointed by the court. There followed two amended P.C.H.A. petitions, one pro se and one by attorney no. 4. On March 27, 1979, appellant filed a pro se application to be permitted to file post-verdict motions, nunc pro tunc.*fn3 Apparently this precipitated the withdrawal of attorney no. 4 in June of 1979. In August of 1979, appellant filed a pro se petition for writ of mandamus with the Pennsylvania Supreme Court. That petition was

[ 329 Pa. Super. Page 341]

    denied and referred to appellant's recently ...


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