Barbara J. Entwistle, Gettysburg, for appellant.
Roy A. Keefer, Assistant District Attorney, Gettysburg, for Com., appellee.
Tamilia, Popovich and Johnson, JJ.
[ 382 Pa. Super. Page 565]
This is an appeal from the trial court's Order dismissing appellant's Post Conviction Hearing Act (PCHA) petition which was filed on February 23, 1987.*fn1
Appellant was tried by a jury and convicted on April 26, 1977 of rape, burglary, indecent assault and simple assault. His sole defense was offered through two alibi witnesses, but, according to appellant, his appointed counsel failed to request a specific jury instruction on the alibi defense.
[ 382 Pa. Super. Page 566]
Counsel also failed to object to a concealment instruction even though no evidence was in the record to show appellant knew of the offense or that he was to be arrested for it.
Appellant was sentenced to a term of imprisonment of two to ten years for the burglary, concurrent with an equal sentence for the rape; indecent and simple assault merged with rape for sentencing purposes. This Court upheld, without Opinion, appellant's judgment of sentence in Commonwealth v. Reese, 270 Pa. Super. 607, 417 A.2d 773 (1979).
On November 12, 1979, appellant filed a pro se PCHA petition and the court subsequently appointed counsel to represent him. Counsel did not revise or supplement the petition but did represent appellant at the hearing. The petition was denied and appellant filed a second pro se petition on July 26, 1984. Again, counsel was appointed and this time counsel amended the petition to include the allegation appellant was denied his appellate rights under the first PCHA petition because he never received notice of the decision which was made on May 21, 1982. Following a hearing, the PCHA court denied the second petition as to new allegations contained therein but granted appellant leave to appeal nunc pro tunc the Order dismissing the first petition.
This Court filed a Memorandum Opinion on December 6, 1985 disposing of appellant's two issues raised in his first petition concerning ineffectiveness of trial counsel for failure to call certain witnesses. We affirmed the Order of the PCHA court and appellant, for the third time, filed a PCHA petition on February 23, 1987, the denial of which is the subject of the instant appeal.
Newly appointed counsel supplemented appellant's third petition and at a pre-trial conference, the court concluded only four issues had not been finally litigated and merited review. By Order of July 27, 1988, the court ...