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COMMONWEALTH PENNSYLVANIA v. DANIEL CURTIN (06/15/87)

submitted: June 15, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL CURTIN, APPELLANT



Appeal from the PCHA Order of February 25, 1987, in the Court of Common Pleas of Erie County, Criminal Division, at No. 1620 of 1981.

COUNSEL

Robert E. McBride, Jr., Erie, for appellant.

Timothy J. Lucas, Assistant District Attorney, Erie, for Com., appellee.

Del Sole, Montemuro and Hester, JJ.

Author: Hester

[ 365 Pa. Super. Page 426]

This is an appeal from an order of the Court of Common Pleas of Erie County denying relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. ยงยง 9541-9551. We affirm.

On March 12, 1982, appellant, Daniel Curtin, was found guilty by a jury of robbery, conspiracy and various firearms offenses for which the sentences imposed totaled ten to twenty years imprisonment. On direct appeal we affirmed the judgment of sentence on December 31, 1984. 488 A.2d 1162. The Pennsylvania Supreme Court denied Curtin's petition for allowance of appeal on June 24, 1985.

Appellant filed a petition under the PCHA alleging a denial of his constitutional right to competent counsel. Following a counseled evidentiary hearing on December 11, 1986, the court denied relief on February 25, 1987. This appeal followed.

Beginning with post-trial motions, appellant has argued throughout the appeal process that the trial court erred in refusing to examine witness James Mechling outside of the presence of the jury. Appellant theorized that the Commonwealth knew that Mechling would refuse to testify, and such refusal would prejudice appellant. The trial court summarized the basis for the claim as follows.

James Mechling was originally charged with the aforementioned crimes along with the Defendant and one Larry DeFoy. In the Commonwealth's case against Mr. DeFoy, Mr. Mechling refused to testify against the CoDefendant and was held in contempt. Defendant argues that before Mr. Mechling took the stand in the present case the Commonwealth knew that Mr. Mechling would refuse to testify, and that the refusal and consequences

[ 365 Pa. Super. Page 427]

    thereof unfairly prejudiced Defendant in the eyes of the jury.

Trial court opinion at 2. Appellant acknowledges that this issue was considered and rejected by the trial court, this court and the supreme court. However, he now asserts that trial, direct appeal and allocatur counsel all rendered ineffective assistance when they failed to ...


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