Commonwealth v. LohrCommonwealth v. Lohr
- Reporters:
- , ,
- Before:
- Flaherty
Appellant Edward Eugene Lohr appeals pro se from the affirmance by Superior Court 1 of the Court of Common Pleas’ dismissal, without hearing, of his petition under the Post Conviction Hearing Act (PCHA), 2 challenging the legality of the imposition of a separate sentence for each of the crimes of which he was convicted, statutory rape and attempted murder. In his appeal to this Court, appellant additionally seeks reversal of his convictions on grounds of ineffective assistance of both post-conviction and trial counsel, claims apparently raised for the first time. 3 We affirm.
On Halloween night, 1977, the 13 year old victim was hitchhiking with a female companion. They accepted a ride offered by appellant and three other men. The victim was eventually taken to a cottage, where she engaged in various sexual acts with appellant that night and the following day. The evening of that second day, she was taken into a
Appellant argues that Superior Court erred in affirming the summary dismissal of his first PCHA petition which asserted that the doctrine of merger in sentencing was applicable to these crimes. The Post Conviction Hearing Act provides that the court, when presented with a petition under the act, shall order a hearing unless the petition presents a claim which is “patently frivolous,” in which case the petition may be dismissed without hearing. Post Conviction Hearing Act, supra, § 1180-9. The doctrine upon which appellant relies provides that where the crimes arise from the same act and where one crime necessarily involves another, the crimes have merged and a defendant may not be sentenced separately for each crime. Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981). On the evening of October 31 and the day of November 1, appellant engaged in sexual relations for which he was convicted of statutory rape. In the early evening of November 1, he inflicted wounds with a deadly weapon, an ice pick, upon a vital area of the victim’s body, her chest and back, for which he was convicted of attempted murder. The crimes do not arise from the same act and, thus, appellant’s argument is “patently frivolous” and the Superior Court affirmance of the dismissal by the Post Conviction court without hearing was correct.
The first of appellant’s allegations of ineffective assistance of counsel presented to this Court is a layered claim charging that post conviction counsel was ineffective for
THE DISTRICT ATTORNEY of BUTLER COUNTY by this information charges that on or about the 31st day of October, 1977, and November 1, 1977, in Jackson Township, the defendant above named, in the County of Butler, did on or about said dates in Jackson Township, Butler County, Pennsylvania, in company with JOHN LANG, CHESTER FULTON and ROBERT HARRIS, willfully and unlawfully, knowingly and intentionally engage in sexual intercourse with one, Irene Strothers, age 13, by forcible compulsion or threat of same, on October 31, 1977 and November 1, 1977, the said incidents taking place in a cottage in said Township,
all of which is against the Act of Assembly and the Peace and dignity of the Commonwealth of Pennsylvania.Section 3121 of the Crimes Code.
18 P.S. Sec. 3121 [Rape] (Felony 1st.) Citation of Statute and Section
[Sig.] John H. Brydon 5 Attorney for the Commonwealth
(Emphasis supplied.)
If there exists a variance between the allegations of an information and proof at trial, such variance is harmless error unless a defendant could be misled at trial, prejudicially surprised in efforts to prepare a defense, precluded from
We have determined that the information effectively charged both statutory rape and forcible rape and, as such, the information was not at variance with the proof of statutory rape adduced at trial. The information charged that appellant had engaged in sexual intercourse with a thirteen year old female. The additional allegation that the rape was nonconsensual merely preserved the right of the Commonwealth to present evidence at trial that the rape was forcible; it did not foreclose proof of statutory rape. That the information refers to a specific section number of the Crimes Code is unfortunate but not fatal. The offense charged and on what statute it is founded is to be determined from the allegations in the information. Hammer v. U.S., 271 U.S. 620, 628, 625, 46 S.Ct. 603, 604, 70 L.Ed. 1118, 1120 (1926); United States v. Nixon, 235 U.S. 231, 235, 35 S.Ct. 49, 50, 59 L.Ed. 207, 209 (1914); U.S. v. Kuzma, 141 F.Supp. 91, 92 (E.D.Pa.1954).
Furthermore, the statutes defining the crimes of rape and statutory rape do so in such a manner that the crimes are not mutually exclusive. Formerly, the crime of statutory rape required proof of consent by the victim,
Next, appellant argues that post-conviction counsel was ineffective for failing to attend appellant’s co-actor’s re-trial during which the attorney for the Commonwealth expressed the view that appellant was not the actor guilty of attempted murder but that it was another of the four men, Harris. The attorney for the Commonwealth, in making an offer of proof when calling a witness, stated:
I am calling him to show that he is part owner with his sister. He lived in this cottage. He was in the cottage. Chester [Fulton, co-actor] was there. Chester left at four-thirty with another man, I believe it wasn’t Lohr, [appellant], it was Mr. Harris, and when he returned, [the victim] never came back.
Commonwealth v. Chester Fulton, Notes of testimony, June 21, 1981, p. 189. The victim, however, steadfastly maintained in the re-trial of Chester Fulton, as she did in appellant’s trial, that it was indeed appellant Lohr who stabbed her. Thus, the evidence of the victim’s testimony is dispositive and the prosecutor’s statement of opinion merely gratuitous. Appellant’s argument is without merit.
Where counsel believes that an appeal would be wholly frivolous the procedure to be pursued is set forth in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) (McClendon) requiring that counsel seek to withdraw by so petitioning the court and filing an Anders 6 brief setting forth claims of “arguable merit.” This requirement is intended to act as a reconciliation between disparate views: first, counsel’s belief that an appeal would be wholly frivolous and, second, the right of an indigent defendant to enjoy representation commensurate with that available to more monied defendants. Submission of an Anders brief induces the court’s review of the potential merit of an appeal before ruling on counsel’s application to withdraw. As stated in McClendon, the goal is an independent determination of the merit of an appeal by a reviewing court.
Here, counsel’s actions are clearly outside the requirements of
McClendon.
However, the goal pursued by
McClendon,
review of the merit of the appeal, is fulfilled by the instant review, negating the possibility of prejudice
Finally, appellant argues that counsel was ineffective for failing to appeal to this Court the Superior Court’s denial of relief on the issue of an alleged abuse of discretion in the trial court in granting an extension of time for commencement of trial under
Two separate complaints were filed against appellant, the first, dated November 1, charged appellant with rape, the second, dated February 24, charged appellant with attempted murder. Between November 1 and February 24, the Commonwealth was working under the misapprehension that it was co-actor Harris, who was fugitive during this interim, who attempted the murder rather than appellant. The February 24 complaint was filed as a result of information gained at the preliminary hearing of co-actor Harris at which the victim identified appellant as one of the actors who attempted to murder her. In addition, by Order of Court dated March 17, 1978, the Commonwealth was ordered to try the charge of rape with the charge of attempted murder.
In its application for extension, the Commonwealth averred that the 180 days would run against the Commonwealth on the rape charge before the Commonwealth would be prepared to go to trial on the attempted murder charge and that the late identification of appellant as the actor who attempted to murder the victim occurred due to the unavailability of co-actor Harris. The trial court in granting the extension stated: “[t]his is not a case of the Commonwealth holding back and laying additional charges on defendant. It required investigation to ascertain which of these four men were legitimate suspects in the attempted murder.” Trial court opinion at 2, (April 26, 1978). This determination is within the realm of discretion of the trial
Affirmed.
ROBERTS, C.J., dissents and would direct appointment of counsel to prosecute the appeal on appellant’s behalf.
Notes
. Commonwealth v. Lohr, 297 Pa.Superior Ct. 565, 441 A.2d 775 (1982).
. Act of January 25, 1966, P.L. [1965] 1580, No. 554, § 1
et seq.
as amended,
. This appeal arises as a result of appellant’s filing of a second PCHA petition in the Court of Common Pleas of Butler County after the time for appeal from the Superior Court’s denial of relief from appellant’s first PCHA petition had passed. Although the record does not indicate the relief sought by the second PCHA petition, the Court of Common Pleas granted leave to the appellant to file a petition for allowance of appeal to this Court nunc pro tunc, which petition was granted. The Superior Court opinion, from which appellant was granted leave to appeal nunc pro tunc, addressed the issue of the dismissal, without hearing, of appellant’s first PCHA petition challenging the legality of sentence imposed; we cannot determine with certainty what other issues, if any, were presented to Superior Court and which, by virtue of the Superior Court affirmance, were deemed nonmeritorious. Accordingly, for the sake of judicial economy, we address the additional issues raised by petitioner. While this procedure is admittedly irregular, it is merely a concession to this Court’s grant of allocatur, undertaken apparently without full knowledge of the procedural irregularities of the case.
. See this writer’s dissenting opinion in Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980) (Flaherty, J., dissenting), denouncing this method of endlessly raising allegations of trial error.
. Appellant asserts that a rubber stamp facsimile of the signature of the District Attorney was used on the informations filed against him. Not only would appellant’s objection be without merit in view of our recent decision in Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983), but the two informations filed against appellant are signed personally and individually in ink by John H. Brydon, then District Attorney of Butler County.
. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), reh. denied 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967).