Com. v. Lehr

• Decision Date: 27 December 1990
• Citation: Com. v. Lehr, 583 A.2d 1234, 400 Pa.Super. 514 (Pa. Super. Ct. 1990)
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ronald J. LEHR, Appellant.
• Court: Pennsylvania Superior Court

Page 1234

583 A.2d 1234

400 Pa.Super. 514

COMMONWEALTH of Pennsylvania, Appellee, v. Ronald J. LEHR, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 1, 1990.

Filed Dec. 27, 1990.

Ronald J. Lehr, pro se.

William H. Platt, Dist. Atty., Allentown, for Com.

Before CAVANAUGH, HUDOCK and HESTER, JJ.

HUDOCK, Judge:

At the conclusion of a jury trial, the appellant was found guilty of homicide by vehicle while under the influence, homicide by vehicle, two counts of driving under the influence, and a related summary offense. Timely filed post-verdict motions were denied and the appellant was sentenced to three to seven years imprisonment for the homicide by vehicle charge; a consecutive sentence of ninety days to twenty-three months was imposed on the driving under the influence charges. A timely filed motion seeking reconsideration of sentence was denied. No direct appeal was taken from the judgment of sentence. Thereafter, the appellant filed a petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541, et seq. ¹ Relief was denied after an evidentiary hearing was held on the appellant's petition. This appeal followed.

Instantly, the appellant presents the following fourteen issues for our review:

1. Defendant was improperly sentenced on both the charge of homicide by vehicle while under the Influence[sic] of Alcohol and consecutive sentence for Driving under the Influence of Alcohol.

2. The court allowed testimony as to the use of Vascar without certification of the police officer and the police officer testified that the higest[sic] speed on his speedometer, when floored, which was relevant.

3. The Court allowed the use of a video sobriety test which included oral testimony to which the defendant had not consented.

4. the[sic] Court improperly admitted evidence concerning the testing by the Laboratory of the defendant!s[sic] blood alcohol content. the[sic] laboratory was not approved until February 1986, after the accident from which stemmed the charges against the defendant.

5. The court improperly allowed expert opinion that the defendant!s[sic] vehicle was the sole cause of the accident, by allowing the expert to testify as he did concerning which vehicle was the sole cause of the accident.

6. Defense Counsel failed to ask the expert about the oil and marks upon the road way[sic] on cross examination. [sic]

7. The Court erred in refusing to allow accident[sic] report to be viewed by the Jury.

8. At the supression [sic] hearing, defense counsel never introduced the mirror and post to show the state of defendant!s[sic] consciousness based on his Injuries[sic].

9. The attorney for the defendant never explained possible sentences or any plea bargain offers to the defendant.

10. Trial counsel failed to interview or call Dr. Rohbach as a witness although requested to do so by the defendant.

11. Defense counse,[sic] although requested, failed to call Llyod[sic] Ohl to testify concerning damages to the vehicle and chacter[sic] of the victim.

12. Defendant was threatened by his own attorney that if Mr. Ohl were called to testify as to the chacater[sic] of the victim the prosecution would bring in Mrs[.] Miller concerning the defendant!s[sic] drinking habits.

13. Counsel for the defendant failed to file complete post-trial motions.

14. Counsel for the defendant failed to appeal to the Superior Court.

Brief for appellant, at "D". We begin our analysis with the last issue raised by the appellant, the failure of counsel to appeal his conviction.

To be eligible for relief under the PCRA, the petitioner must plead and prove:

(3) That the allegation of error has not been previously litigated and one of the following applies:

(i) The allegation of error has not been waived.

(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.

(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S.A. § 9543(a)(3).

Ordinarily, absent extraordinary circumstances, the failure to file a direct appeal from a judgment of sentence amounts to waiver of any claim which could have been raised in such an appeal, thereby precluding collateral relief. Now, in an attempt to circumvent the consequences of his failure to appeal from the judgment of sentence imposed upon him, the appellant alleges that counsel was ineffective for failing to file and pursue a direct appeal. To successfully avoid a finding of waiver, the appellant "must prove that he requested an appeal and that counsel disregarded the request." Commonwealth v. Hudson, 336 Pa.Super. 174, 178, 485 A.2d 487, 489 (1984).

At the evidentiary hearing, the appellant testified that following the sentencing proceeding stemming from his motion for reconsideration, he specifically requested counsel to file an appeal. This was contradicted by sentencing counsel who testified that after sentence was imposed, he inquired of the appellant whether or not he wanted to appeal. ² The...