233 Pa. Super. 496 | Pa. Super. Ct. | 1975
Opinion by
Appeal is taken to this Court by each of the above defendants, who were tried in a single jury trial on October 22 and 23, 1973, before Judge Samuel Rosenberg. Howard was found guilty of Aggravated Robbery, Aggravated Assault and Battery, and Playfully and Wantonly Pointing a Firearm. Banks was found guilty of Assault and Battery. Sentences were imposed on December 17, 1973, following which both defendants filed timely motions for new trial and in arrest of judgment. These were denied. Both Appellants have taken these direct appeals which are filed at different numbers, but which have been consolidated for our consideration.
The factual situation is quite simple. One Morris McCants testified that on December 17,1971, he happened upon Banks, whom he knew, at a bar in Philadelphia. After exchanging a few words with Banks, McCants departed and was standing near his automobile when Banks approached with a group of men, one of whom was defendant Howard. McCants related that Howard rifled his (McCants’) pockets, took money, then shot him in the stomach.
Appellant’s first two arguments relate an allegation of ineffective counsel because (1) his trial attorney did not inquire into and/or request a continuance for a medical expert’s review of the mental condition of the Commonwealth’s witness McCants, once a patient in a state mental facility, and (2) his trial attorney erred by stipulating to and allowing the judge to charge the jury on McCants’ psychiatric disorder by reading a medical dictionary’s definition of said disorder, viz., “schizophrenia, paranoid type in remission”.
An allegation of ineffective counsel generally is best decided by an evidentiary hearing pursuant to the Post Conviction Hearing Act.
“Ordinarily, in the absence of clear and irrefutable on the record proof that counsel was ineffective, we will not decide an ineffective assistance of counsel claim on direct appeal. Rather, we will wait until an evidentiary hearing has given the Commonwealth an opportunity to show that the representation was effective under the standards enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).”
For us to comply with this principle, we must examine the trial record carefully. We have done so and find, in Appellant’s counsel’s cross-examination of McCants as to his mental commitment and mental state, no clear indication that counsel’s representation was less than the Maroney, supra, standard.
Appellant’s second argument is that he was denied his Sixth Amendment right to a speedy trial by virtue of the fact that two years, eighteen continuances and three mis
We are therefore constrained to hold, for these reasons, that Appellant is not entitled to raise it now on appeal. Whether this waiver may be overridden by an argument that one may not waive such “basic and fundamental error” as an alleged violation of a Sixth Amendment right we believe has been answered in the negative by the thorough analysis and holding of Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974), and Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
Therefore, we do not meet, in this direct appeal, Appellant’s arguments as to ineffectiveness of counsel and denial of right to speedy trial.
Appellant next alleges that he was placed in double jeopardy. He relies upon Appellant Banks’ argument. The facts as to both being identical, and we shall address the issue immediately below as it applies to both Appellants.
Appellant on behalf of himself and his co-defendant Howard argues that the action of the Court in declaring a mistrial after jury deliberation of approximately six hours
Appellant’s second argument is that he was denied his Sixth Amendment right to speedy trial. As this issue was not raised in his motion for new trial, we deem it waived.
Decision
Judgment of sentence is affirmed as to Appellant Howard.
Judgment of sentence is affirmed as to Appellant Banks.
Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ., concur in the result.
. Act of 1966, January 25, P. L. (1965) 1580, §8 (19 P.S. §1180-3).
. It should be noted that Appellant did raise the speedy trial issue in his October 3, 1973, motion to quash indictment, which was denied after argument. It is not this denial which is the subject of this appeal. To raise this issue herein, Appellant was under obligation to preserve it by presenting it post-trial.
. It is noted that there were three mistrials. The first trial began on September 5, 1973, with mistrial the following day because of damaging press coverage. The second trial began on September 12, 1973, with mistrial the following day because of a hung jury. This second mistrial is the only one argued by Appellant herein. The third trial began on September 25, 1973, with subsequent mistrial because the defendant arrived in prison, clothing.
. Amendment V, United States Constitution: “No person . . . shall be subject for the same offence to be twice put in jeopardy of life or limb . . .” Article I, section 10, Constitution of Pennsylvania: “No person shall, for the same offense, be twice put in jeopardy of life or limb. . . .”
. Testimony reflects that the jury foreman informed the judge that after much deliberation and several votes the jury could not decide. The judge asked if this was the feeling of all the jurors, and each nodded affirmatively. The judge asked them if more time for deliberation were needed, and the foreman replied, “we have been talking about that and I went and took a vote on that particular score and asked them if they would deliberate a little bit more would they come up with any kind of decision, and I received a negative reply.” The foreman told the judge that it was the jurors’ opinion that no matter how long they had, they would not be able to decide. The judge again offered more time (approximately five more hours) and again received the affirmative nod of the jurors that this would not be helpful. Thereupon the judge concluded “that any further instructions from the Court to continue to deliberate would only result in a coerced verdict” and declared a mistrial.