Com. v. Lowry

Citation394 A.2d 1015,260 Pa.Super. 454
PartiesCOMMONWEALTH of Pennsylvania v. Anthony J. LOWRY, Appellant.
Decision Date22 November 1978
CourtSuperior Court of Pennsylvania

Page 1015

394 A.2d 1015
260 Pa.Super. 454
COMMONWEALTH of Pennsylvania
v.
Anthony J. LOWRY, Appellant.
Superior Court of Pennsylvania.
Submitted April 10, 1978.
Decided Nov. 22, 1978.

Page 1017

[260 Pa.Super. 458] Arthur H. Stroyd, Jr., and Reed, Smith, Shaw & McClay, Pittsburgh, for appellant.

Robert L. Eberhardt, Asst. Dist. Atty. and Robert E. Colville, Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.

HESTER, Judge:

Appellant was convicted by a jury on September 9, 1975 in Common Pleas Court of Allegheny County of possession of a controlled substance, carrying a firearm without a license, and former convict not to own a firearm. No appeal was taken from the judgment of sentence. The instant petition under the Post-Conviction Hearing Act 1 was thereafter filed alleging ineffective assistance of trial counsel and other deprivation of rights. Following a hearing thereon, the court granted a new trial on the possession count, arrested judgment on carrying a firearm without a license, and denied relief as to the remaining count. This appeal followed.

[260 Pa.Super. 459] Facts adduced at the suppression hearing and at trial were as follows. On April 17, 1975, Detectives Joiner and Craig of the Pittsburgh Police Dept., acting on the tip of an informant, proceeded to the intersection of Centre Avenue and Arthur Street in the city's Hill District to observe a suspected drug transaction. When they arrived, they observed a red and black Pontiac convertible blocking Arthur Street. Appellant was seated at the wheel, while two other individuals, Allen and Berkley, stood outside. Someone yelled, "The police" (ST. 12) and appellant drove the car away at a "high rate of speed." (ST. 12). Det. Joiner gave chase on foot while Det. Craig drove the police vehicle. A short distance away, appellant stopped the car and all occupants exited, but not before someone threw a small foil package out the window. A search of the car by Det. Craig at the scene produced a .38 caliber special under the front armrest. The officers successfully retrieved the small foil packet from the roadway and subsequent tests proved the substance therein to be cocaine.

We must first determine if, as the Commonwealth contends, appellant has waived the issues herein because of his failure to prosecute a direct appeal. Before disposition of post trial motions, appellant wrote to his trial counsel expressing his "dissatisf(action) with your handling of my case up to this point . . . Consequently, I shall effect my appeal without your further assistance." It is unclear from the record whether a lawyer argued appellant's post trial motions. No appeal from the denial thereof was ever docketed.

Ordinarily, the failure to file an appeal compels a finding that the claims in question have been waived. PCHA, § 1180-4(b)(1); Commonwealth v. Dimitris, 247 Pa.Super. 486, 372 A.2d 930 (1977). We are unable to conclude, however, that the failure to file an appeal herein was a " knowing and understanding" failure, § 1180-4(b)(1). At the Post Conviction Hearing, appellant testified he first directed his trial counsel to file an appeal and to send appellant a copy of the brief. PCH Trans. pp. 82-3. Believing[260 Pa.Super. 460] an appeal had been filed, appellant later discharged his trial counsel and filed his first PCHA petition, which was dismissed by the court as being "premature" during the appeal period. Appellant was not "quite sure the reason it was denied", PCH Trans. p. 84, but nonetheless requested a reinstatement of the petition. When directed by the lower court to draw a new petition, appellant complied, filing the instant petition. These attempts to seek a review of his conviction, as well as appellant's mistaken belief that an appeal on his behalf had been docketed, lead us to conclude appellant did not knowingly and understandingly fail to pursue a direct appeal. See Commonwealth v. Via,

Page 1018

455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977).

Turning to the merits of this appeal, we consider first appellant's averments of trial counsel's ineffectiveness. 2 Initially, we note counsel will be deemed effective once we conclude that the particular choice made by counsel had some reasonable basis designed to effectuate his client's interests. "(A) finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 603, 235 A.2d 349, 353 (1968). Appellant first contends trial counsel failed to question an inference that appellant possessed the weapon found in the car. Since the gun was discovered under the middle armrest of the vehicle, appellant argues that the inference he knew of its presence was invalid, Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976), and that counsel failed to argue Wisor to the Court. 3 We note first that Wisor was decided [260 Pa.Super. 461] after appellant's trial was concluded. 4 Counsel will not be deemed ineffective for failing to foresee future developments in the law. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977). Moreover, counsel Did argue, in the nature of a demurrer, that the Commonwealth had not proven appellant exercised control over the weapon, Trial Trans. p. 138, and argued the "equal access" question to the jury. These efforts by counsel do not allow us to find his stewardship ineffective.

Appellant next contends his counsel should have argued that the two counts charging firearms violations merged into one offense. The court having arrested judgments on one count (18 Pa.C.S.A. § 6106), this issue is moot. Appellant contends, however, that the issue is not moot since he was prejudiced by having to defend himself against two separate charges, where one could have been dismissed under...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT