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

SUPERIOR COURT OF PENNSYLVANIA


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 (repealed).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 motions, an appeal was taken but denied. Thereafter, the

[ 384 Pa. Super. Page 254]

    defendant filed pro se a second PCHA petition alleging ineffectiveness of counsel for failure to raise a Rule 1100 issue. This petition was denied without a hearing. Additional pro se petitions were filed and denied; however, with the assistance of counsel, the defendant filed still another PCHA petition which was granted by the hearing court. This Court affirmed.

In reversing the order of this Court, our Supreme Court went on to state: "We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred."*fn2 Id., 519 Pa. at 513, 549 A.2d at 112. In deciding whether there was a miscarriage of justice present under the facts, the Court noted:

With regard to the instant case, the petitioner does not attack the fairness of the trial that resulted in his conviction, nor does he even assert that he was innocent of the criminal charges involved. What he seeks to do is to negate his obligation to stand trial, and in that effort relies on a procedural technicality. There has been no showing of a miscarriage of justice that would warrant entertaining his repetitive application for collateral relief. This petition should have been dismissed by the court without a hearing.

Id.

While Lawson was decided by utilizing the provisions of the former Post Conviction Hearing Act, we find the same

[ 384 Pa. Super. Page 255]

    rationale applicable to the facts in the case at bar. Several reasons support this finding. First, the sweeping language used by the Court could pertain to petitions filed under the former as well as the new act.*fn3 Moreover, under the new act, in order to be eligible for relief, a petitioner who claims that counsel was ineffective must plead and prove that counsel's stewardship "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place."*fn4 42 Pa.C.S.A. § 9543(a)(2)(ii). Finally, the Court in a comment to the newly enacted Pa.R.Crim.P., Rule 1507, 42 Pa.C.S.A., clearly stated that a second or subsequent post-conviction petition should be summarily dismissed where the defendant fails to meet the Lawson standard.*fn5 Clearly then, the mandate of Lawson is applicable to petitions filed under the PCRA.

Turning to the facts of the case at bar, we find that the hearing court erred in granting the relief requested by appellant. Appellant's claim regarding Rule 1100 is identical to the claim raised in Lawson, and pursuant to that Court's reasoning as well as the statutory authority set forth in 42 Pa.C.S.A. § 9543(a)(2)(ii), we hold that the proper procedure would have been to deny this issue without a hearing. We find the same disposition applicable to appellant's claim regarding suppression of his pre-trial identification. While it is true that, under extreme circumstances, a pre-trial identification procedure can undermine the reliability of the adjudication (see e.g., Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982)), our review of

[ 384 Pa. Super. Page 256]

    the record reveals that such is not the case in the present situation.*fn6 Therefore, this issue should have been summarily denied as well.*fn7

Order of the hearing court is vacated and the petition is dismissed. Jurisdiction relinquished.

Disposition

Order of the hearing court is vacated and the petition is dismissed. Jurisdiction relinquished.


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