Appeal from the PCHA Order of July 1, 1981, in the Court of Common Pleas of Centre County, Criminal, No. 1973-180.
Robert B. Manchester, Bellefonte, for appellant.
Robert A. Mix, District Attorney, Bellefonte, for Commonwealth, appellee.
Spaeth, President Judge, and Cavanaugh, Wieand, McEwen, Cirillo, Del Sole, Johnson, Popovich and Cercone, JJ. Spaeth, President Judge, files a dissenting opinion.
[ 346 Pa. Super. Page 587]
The PCHA*fn1 court, following a determination that appellant had been improperly denied a direct appeal from the judgment of sentence imposed subsequent to his conviction upon three counts of assault by a prisoner and aggravated assault and battery, granted appellant the right to bring this appeal nunc pro tunc. See Commonwealth v. Miranda, 296 Pa. Super. 441, 442 A.2d 1133 (1982).
Appellant asserts that trial counsel was ineffective as a result of his failure to have a court reporter record the voir dire examination since without such a transcript he is unable to demonstrate in a direct appeal that one member of the jury which found him guilty was biased. Appellant contends that the absence of a transcript or an equivalent picture of the voir dire proceedings, wherein "[o]ne of the jurors said that he was associated or was a friend of somebody from Rockview", requires that he receive a new trial. We find the allegation of ineffectiveness to be without merit and, thus, affirm the judgment of sentence.
Appellant was an inmate at the State Correctional Institution at Rockview on February 22, 1973, when he attacked three guards with a knife. Appellant told one of the victims "I will kill you, you 'son-of-a-bitch'" as he stabbed him in the head, the arm and in the abdomen, the last wound requiring the placement of sutures. Another of the guards was cut twice on the arm. All three guards who had been attacked by appellant provided totally consistent
[ 346 Pa. Super. Page 588]
testimony upon the entire occurrence. Appellant testified at trial that he had no recollection of any part of the occurrence by reason of the fact that approximately two hours before the incident:
I felt peculiar to the extent that I had become, you know, real paranoid. My vision was starting, you know, to get blurred, like, you know, I started hearing things, like things were being magnified and I found myself starting to do things, like, you know, doing a whole lot of things all at one time, you know.
I thought I seen, you know, like, some imaginary, you know, like a ghost. It looked like a blob, or something, coming at me.
The jury found appellant guilty of assault by a prisoner, assault with intent to kill and aggravated assault and battery. Trial counsel timely filed a motion in arrest of judgment challenging the sufficiency of the evidence with regard to all charges. The trial judge arrested judgment upon the offense of assault with intent to kill and imposed a sentence of not less than four years and not more than eight years upon the convictions for assault by a prisoner and aggravated assault and battery. Immediately after sentencing, appellant directed a letter to trial counsel in which he requested counsel to file an appeal on his behalf. Counsel promptly replied by letter that he was unaware of any grounds for appeal and requested appellant to indicate the grounds upon which he desired to appeal. No direct appeal was ever undertaken.
Appellant then filed a pro se PCHA petition on June 19, 1975, in which he raised more than twenty-four allegations of trial error and instances of ineffectiveness on the part of trial counsel.*fn2 Through no fault of appellant, no action was taken on his pro se PCHA petition for almost five years. Counsel was finally appointed and caused an amended
[ 346 Pa. Super. Page 589]
PCHA petition to be filed on January 14, 1981. The amended petition alleged, inter alia, that trial counsel had been (a) ineffective as a result of his failure to undertake a direct appeal from the judgment of sentence, (b) ineffective as a result of his failure "to challenge an individual juror of petitioner's jury that was prejudiced toward petitioner", and (c) ineffective by reason of his failure to request that the jury selection proceedings be recorded. The PCHA court correctly concluded, following an evidentiary hearing, that appellant had been denied his right to a direct appeal and entered an order permitting appellant to file this appeal nunc pro tunc. See Commonwealth v. Miranda, supra.
As heretofore observed, appellant argues that he is entitled to a new trial as a result of the absence of a transcript of the voir dire examination. Since appellant did not request that the voir dire proceedings be transcribed, and since appellant failed to raise in his post-verdict motions any allegations of error concerning the selection of the jury, we would ordinarily consider these claims waived. See Commonwealth v. Yohn, 271 Pa. Super. 537, 540, 414 A.2d 383, 385 (1979). However, as a result of appellant's allegations concerning the quality of counsel's representation, we will, nonetheless, consider these assertions within the narrowed context of appellant's claim that counsel was ineffective by reason of his failure to provide for the voir dire examination to be stenographically recorded so as to enable meaningful appellate review of the claim that a juror was biased.
"In reviewing a claim of ineffectiveness of counsel, with regard to the performance component, a two pronged test has been employed. First our courts have determined whether the claim that counsel failed to assert was of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); see also Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983); Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983); Commonwealth v. ...