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COMMONWEALTH PENNSYLVANIA v. ROBERT W. BLACKWELL (01/17/89)

submitted: January 17, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT W. BLACKWELL, APPELLANT



Appeal from Post Conv. Relief Act June 22, 1988, in the Court of Common Pleas of Lycoming County, Criminal, No. 83-10,480.

COUNSEL

James R. Protasio, Williamsport, for appellant.

Brett O. Feese, District Attorney, Williamsport, for Com., appellee.

Olszewski, Beck and Cercone, JJ.

Author: Olszewski

[ 384 Pa. Super. Page 252]

This is an appeal nunc pro tunc from a judgment of sentence after conviction for attempted rape, indecent assault, simple assault, terroristic threats and burglary. Appellant raises two issues for our consideration: first, whether the trial court erred in denying appellant's motion to suppress identification due to an impermissibly suggestive line-up; and second, whether the trial court erred in denying appellant's motion to dismiss on Rule 1100 grounds. For the following reasons, we vacate the order of the trial court granting appellant the right to file an appeal nunc pro tunc.

Appellant had originally been convicted in this matter, following a jury trial, on September 15, 1983. Post-verdict motions were denied and appellant was sentenced to ten-to-twenty years' imprisonment. An appeal to this Court was

[ 384 Pa. Super. Page 253]

    filed on behalf of appellant; however, it was dismissed due to counsel's failure to file a brief. Thereafter, appellant filed a petition under the former Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. (repealed). Finding that appellant had been denied his right of appeal, the court granted him the right to appeal nunc pro tunc. New counsel was appointed and a brief filed; however, the two issues raised herein, while placed in statement of questions, were never argued in the body of the brief. In affirming the judgment of sentence, this Court found these two issues to be waived.

On April 18, 1988, appellant filed another petition, this time under the new Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq.*fn1 New counsel was appointed and on June 21, 1988, an amended PCRA petition was filed. Both petitions alleged the ineffectiveness of appellate counsel for failing to brief the aforementioned issues. The hearing court, after consideration of this petition, granted the request and gave leave to appellant to file an appeal nunc pro tunc limited to those issues deemed waived by this Court. Appellant then filed the instant appeal.

In its brief, one of the Commonwealth's contentions is that the hearing court erred in granting the relief requested by appellant in his second post-conviction petition. In support of this argument, the Commonwealth points to our Supreme Court's recent decision in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). Before we can reach the merits of appellant's issues, we must address the Commonwealth's claim.

In Lawson, the defendant filed a petition under the former Post Conviction Hearing Act alleging ineffectiveness of counsel and was granted permission to file post-verdict motions nunc pro tunc. Following denial of these ...


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