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submitted: April 18, 1988.


Appeal from the PCHA January 22, 1987, Court of Common Pleas, Criminal Division, Philadelphia County, No. 2081 & 2084 May Term, 1972


Norris E. Gelman, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, Melinson and Watkins, JJ. Melinson, J., concurs in the result.

Author: Cavanaugh

[ 379 Pa. Super. Page 493]

The appeal is from the denial of a request for relief pursuant to the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. ยง 9541 et seq. Appellant challenges the length of sentences imposed after his second trial for murder and robbery. He argues that his current aggregate sentence of twenty to forty years is in fact harsher than his original

[ 379 Pa. Super. Page 494]

    sentence of life imprisonment and a concurrent term of ten to twenty years. Additionally, appellant takes issue with the sentence credit for the amount of time spent in custody prior to imposition of his second sentences. Finally, in a pro se supplemental brief, appellant seeks a new sentence based upon the trial court's consideration of impermissible factors.

Appellant was originally tried for murder, aggravated robbery, and burglary in March, 1973 and was convicted by a jury of these charges. He was sentenced to a life term of imprisonment for first degree murder and a concurrent term of ten to twenty years imprisonment for the aggravated robbery. On appeal of these convictions, the Pennsylvania Supreme Court awarded appellant a new trial on the basis of the illegality of appellant's arrest. Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978).

The second trial was held before the Honorable Edwin S. Malmed and a jury in June, 1978. The result of this trial was convictions of second degree murder and robbery. After the filing of post-verdict motions, and argument thereon, Judge Malmed sentenced appellant to maximum terms of imprisonment, i.e., ten to twenty years on the second degree murder*fn1 and a consecutive term of ten to twenty years on the aggravated robbery.

Appellant took a direct appeal from his second convictions, which were affirmed. Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981).

Appellant sought PCHA relief, and for the first time raised the issues currently before us. As stated in the brief for appellant, those issues are as follows:

1. Was appellant given an increased sentence following his retrial in violation of the double jeopardy clauses of the state and federal constitutions, and was trial counsel ineffective for failing to object to the sentencing on these grounds and was appellate counsel ineffective for

[ 379 Pa. Super. Page 495]

    failing to raise these arguments via ineffectiveness of trial counsel allegations on direct appeal?

2. Should appellant have been given full credit for the time he served on both the murder and robbery convictions when resentenced and were not both trial counsel and appellate counsel ineffective for failing to raise these arguments at sentencing and on direct appeal respectively?

Additionally, the following issue is raised in the pro se supplemental brief for the appellant:*fn2

3. [Were] appellant's sentences imposed after a successful appeal based upon impermissible factors and were both trial and appellant counsel ineffective for failing to raise this issue when each should have raised it?

A claim of ineffectiveness of counsel requires a determination whether the claim is of arguable merit, and, if so, whether the course chosen by counsel had a reasonable basis designed to serve the client's interests. Finally, a showing that counsel's performance caused actual prejudice is required before counsel is considered constitutionally ineffective. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); Commonwealth v. Wienckowski, 371 Pa. Super. 153, 537 A.2d 866 (1988).

The first issue provides no basis upon which to find a claim of arguable merit since it is directly controlled by the

[ 379 Pa. Super. Page 496]

    case Commonwealth v. Brenizer, 477 Pa. 534, 384 A.2d 1218 (1978). As noted by the PCHA court, Brenizer presented a nearly identical issue where a defendant, who had received concurrent terms of life and ten to twenty years for murder/robbery convictions, after retrial received consecutive ten to twenty year terms. The Supreme Court rejected the argument that the later sentence was actually harsher than the first because it delayed defendant's eligibility for parole. Since a life sentence precludes parole, the court found that the second sentence, which provided for the opportunity of parole after expiration of the minimum sentence, was not more severe than the first sentence.

Appellant attempts to distinguish Brenizer by stating that his case does not deal with parole eligibility. As articulated ...

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