Appeal from Order denying petition for Post Conviction Relief in the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 8008089.
Charles J. Porter, Pittsburgh, for appellant.
Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
Brosky, Wieand and Kelly, JJ. Kelly, J., files a concurring opinion.
[ 390 Pa. Super. Page 465]
In this appeal from an order denying post conviction relief, the principal issue is whether the absence of a pre-trial, preliminary hearing requires the release and discharge of a defendant who in all other respects has been properly tried, convicted and sentenced. After careful review, we conclude that the defendant in this case is not entitled to post conviction relief and affirm the order of the P.C.R.A. court.
On December 26, 1980, a criminal complaint was filed against George Lyons in which it was alleged that he had committed the crimes of robbery and criminal conspiracy in connection with a purse snatching which had occurred on a Pittsburgh street on October 10, 1980. An arrest warrant was issued, but Lyons could not be found and the warrant was not executed. On January 6, 1981, the Commonwealth, having recited an inability to execute the warrant despite reasonable efforts because of the defendant's evasive tactics, requested leave of court to file an information without
[ 390 Pa. Super. Page 466]
holding a preliminary hearing. This request was granted. Lyons was not taken into custody until July 2, 1981, after which he was duly arraigned and entered a plea of "not guilty." Prior to trial, he filed a motion requesting a preliminary hearing. This motion was denied.*fn1 Lyons also filed pre-trial motions to suppress identification testimony and to dismiss the prosecution for a violation of Pa.R.Crim.P. 1100. These motions were denied after hearing.
Lyons was tried without jury on January 28, 1982 before the Honorable James R. McGregor and was found guilty as charged. Post-trial motions were denied, and Lyons was sentenced to serve consecutive terms of imprisonment of not less than five (5) years nor more than ten (10) years for each offense. A motion to modify sentence achieved a reduction of the minimum sentence for conspiracy to four and one-half (4 1/2) years. A subsequent appeal to the Superior Court was interrupted by an order which remanded the case for an evidentiary hearing on a motion for new trial based on newly discovered evidence. During the course of such hearing, appellant contended that the robbery may have been committed by someone who looked like him, and the trial court ordered a new lineup. When Lyons refused to participate in the lineup, however, the court rescinded its order, granted a request by counsel to withdraw, and denied the motion for new trial. New counsel was appointed, and another appeal was filed in the Superior Court. The judgment of sentence, however, was affirmed. See: Commonwealth v. Lyons, 367 Pa. Super. 649, 528 A.2d 257 (1987). A petition for allocatur to the Supreme Court was denied.
On May 18, 1988, Lyons filed pro se a petition which collaterally attacked his conviction. Although styled a petition under the Post Conviction Hearing Act, it was more correctly a request for relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., which had become effective on April 13, 1988. Counsel was appointed, an
[ 390 Pa. Super. Page 467]
addendum to the petition was filed, and an evidentiary hearing was held before the Honorable James R. McGregor. Post conviction relief, however, was denied. This appeal followed.
Appellant's first contention is that the court in Allegheny County erred when it permitted the Commonwealth to file an information without a preliminary hearing. This issue, however, was not raised in post-trial motions or on direct appeal. In the absence of extraordinary circumstances, therefore, the issue has been waived. See: 42 Pa.C.S. § 9544(b); Commonwealth v. Craddock, 370 Pa. Super. 139, 142-143, 535 A.2d 1189, 1191 (1988).
In order to avoid the effect of an apparent waiver, appellant argues that his trial counsel and subsequent counsel were constitutionally ineffective for failing to move to quash the information and for failing to preserve the absence of a preliminary hearing for appellate review. For counsel to be found constitutionally ineffective, it must be shown that there was arguable merit in the claim not asserted, that the failure to assert the same was not reasonable, and that the defendant was prejudiced thereby. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
"There is no constitutional right, federal or state, to a preliminary hearing." Commonwealth v. Ruza, 511 Pa. 59, 64, 511 A.2d 808, 810 (1986). See: Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974). In Pennsylvania, Pa.R.Crim.P. 141 contains provision for a preliminary hearing whose principal function is to protect the individual against unlawful detention. Commonwealth v. Ruza, supra, 511 Pa. at 64, 511 A.2d at 810. Under certain circumstances, the attorney for the Commonwealth may be permitted to file an information without a preliminary hearing. Pa.R.Crim.P. 231(a) provides as follows:
(a) When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the statute of limitations ...