414 A.2d 642 | Pa. Super. Ct. | 1979
Appellant, Jack Donald Fox, was convicted of first degree murder in 1970 and sentenced to life imprisonment. The appellant was represented at trial by Attorney Willard, the Chief County Public Defender, now deceased, and Attorney Mullin, a Public Defender from another county, who is still alive and practicing. On direct appeal, the Supreme Court
Appellant filed a petition for Post Conviction Hearing Act relief
Appellant alleges that he was denied his constitutional right to representation by competent counsel, in that his defender, Mr. Willard, did not competently represent appellant during the pre-trial, trial, and post-trial phases of the original proceedings.
The first issue is whether appellant was denied his right to competent counsel in the pre-trial stage in that: he was able to confer with Mr. Willard on only five or six occasions for a total of five and one-half or six and one-half hours; that he only discussed his version of what happened on the date of the shooting on one occasion; that he was never provided with a copy of the complaint and indictment or information after requesting it; and that no pre-trial motion was filed attacking the twelve-day period between arrest and preliminary hearing.
Appellant has clearly failed to meet the burden of proving counsel was ineffective because he had inadequate time to prepare the defense. Mr. Willard spent five and one-half to six and one-half hours conferring with appellant before trial. Additionally, as appellant admitted in his testimony, Mr. Mullin, one of his attorneys, also consulted with him on several occasions for five and one-half to six and one-half hours, and he informed appellant that he would discuss these matters with Mr. Willard.
Similarly, appellant’s assertion that Mr. Willard was ineffective for not providing a copy of the complaint and indictment or information to appellant upon request is with
Finally, counsel’s failure to file a pre-trial motion attacking the two-day delay in affording appellant a preliminary hearing in violation of Pa.R.Crim.P. 140(f)(1) was not ineffective.
The second issue is whether appellant’s right to effective assistance of counsel was denied at trial on various grounds. The first is that he did not receive a list of jurors until fifteen minutes before jury selection. There is no testimony that appellant knew any of the jurors or had any objection to any juror. He also admitted that counsel asked him if he knew any of the jurors; therefore, he has failed to prove that he was prejudiced in any way by the jurors selected after lengthy voir dire examination. Consequently, he has failed to prove counsel’s actions had no reasonable basis in fact. Commonwealth ex rel. Washington v. Maroney, supra. He also claims that during the course of the trial, Mr. Willard conferred with him for only fifteen to eighteen minutes, despite his attempt to discuss trial matters and testimony, including possible forgery of his signature on checks by a key Commonwealth witness. As to this claim, he fails to point out that he frequently conferred with his other counsel, Mr. Mullin, during trial as found in the instant PCHA hearing.
Lastly, he complains of the failure of counsel to have available at trial Dr. Negley, the Coroner, and the failure of counsel to anticipate that Dr. Lyphard, the Pathologist who performed the autopsy, would not be available at trial. If Dr. Negley’s testimony could have aided appellant in his trial, he could have easily called him as a witness in the PCHA hearing since Dr. Negley still resides in Huntingdon County. Having failed to do so, appellant has not met his burden of proof. Commonwealth v. Logan, supra. The testimony of Dr. Lyphard, the Pathologist, was presented in appellant’s pretrial habeas corpus hearing on May 20, 1970. At that time it was made perfectly clear to all parties that he was preparing to move permanently to Canada, and that he would be unavailable at trial. Mr. Willard’s cross-exami
The third issue is whether counsel was ineffective in the post-trial phase of the proceedings. In short, appellant alleges that counsel did not discuss the direct appeal with him, nor was he aware that counsel only pursued four of the forty-six reasons in support of the motions on appeal. In Commonwealth v. Laboy, 460 Pa. 466, 471-472, 333 A.2d 868, 870 (1975), the Supreme Court considered the same issue: “Is appellate counsel derelict in his representation if he refuses to present to the court on appeal issues which appellant feels are meritorious? We may review the record to determine whether there was any reasonable basis for limiting the appeal to one or two substantial issues while ignoring all other issues either considered by the attorney or pressed by the client. If, in view of the reasonable alternatives, the appellate advocate had any rational basis for restricting the appeal to the one or two issues chosen, then he has performed as an effective counsel, and it matters not that he rejected other issues whether gathered from his own research or advanced by the client.” The lower court found that appellant was unable to point to one single issue, not raised on appeal by Mr. Willard, that he believed to be meritorious. In addition, appellant offers no evidence on
Therefore, in each of the three stages of the proceedings, Mr. Willard has either had some reasonable basis for his actions, or appellant has failed in meeting the burden of proving ineffectiveness.
Accordingly, the order of the lower court denying the PCHA petition is hereby affirmed.
. Post Conviction Hearing Act, Act of Jan. 25, 1966, P.L. (1965), 1580, § 11, 19 P.S. § 1180, et seq.
. PCHA Hearing No. 2, N.T. p. 15.
. PCHA Hearing No. 2, N.T. p. 6.
. Id. p. 6.
. Rule 140(f) reads in pertinent part:
(f) When a preliminary hearing is not waived, the issuing authority shall:
(1) fix a day and hour for a preliminary hearing which shall not be less than three nor more than ten days after preliminary arraignment unless extended for cause shown, unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the complainant and the attorney for the Commonwealth.
. See Commonwealth v. DeCosey, supra, substantial compliance even though delay of four days.
. PCHA Hearing No. 2 Opinion p. 6.