Com. v. Lyons

• Decision Date: 08 February 1990
• Citation: Com. v. Lyons, 568 A.2d 1266, 390 Pa.Super. 464 (Pa. Super. Ct. 1990)
• Parties: COMMONWEALTH of Pennsylvania v. George LYONS, Appellant.
• Court: Pennsylvania Superior Court

Page 1266

568 A.2d 1266

390 Pa.Super. 464

COMMONWEALTH of Pennsylvania v. George LYONS, Appellant.

Superior Court of Pennsylvania.

Submitted July 10, 1989.

Filed Dec. 27, 1989.

Reargument Denied Feb. 8, 1990.

Charles J. Porter, Pittsburgh, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.

Before BROSKY, WIEAND and KELLY, JJ.

WIEAND, Judge:

In this appeal from an order denying post conviction relief, the principal issue is whether the absence of a pre-trial, preliminary hearing requires the release and discharge of a defendant who in all other respects has been properly tried, convicted and sentenced. After careful review, we conclude that the defendant in this case is not entitled to post conviction relief and affirm the order of the P.C.R.A. court.

On December 26, 1980, a criminal complaint was filed against George Lyons in which it was alleged that he had committed the crimes of robbery and criminal conspiracy in connection with a purse snatching which had occurred on a Pittsburgh street on October 10, 1980. An arrest warrant was issued, but Lyons could not be found and the warrant was not executed. On January 6, 1981, the Commonwealth, having recited an inability to execute the warrant despite reasonable efforts because of the defendant's evasive tactics, requested leave of court to file an information without holding a preliminary hearing. This request was granted. Lyons was not taken into custody until July 2, 1981, after which he was duly arraigned and entered a plea of "not guilty." Prior to trial, he filed a motion requesting a preliminary hearing. This motion was denied. ¹ Lyons also filed pre-trial motions to suppress identification testimony and to dismiss the prosecution for a violation of Pa.R.Crim.P. 1100. These motions were denied after hearing.

Lyons was tried without jury on January 28, 1982 before the Honorable James R. McGregor and was found guilty as charged. Post-trial motions were denied, and Lyons was sentenced to serve consecutive terms of imprisonment of not less than five (5) years nor more than ten (10) years for each offense. A motion to modify sentence achieved a reduction of the minimum sentence for conspiracy to four and one-half (4 1/2) years. A subsequent appeal to the Superior Court was interrupted by an order which remanded the case for an evidentiary hearing on a motion for new trial based on newly discovered evidence. During the course of such hearing, appellant contended that the robbery may have been committed by someone who looked like him, and the trial court ordered a new lineup. When Lyons refused to participate in the lineup, however, the court rescinded its order, granted a request by counsel to withdraw, and denied the motion for new trial. New counsel was appointed, and another appeal was filed in the Superior Court. The judgment of sentence, however, was affirmed. See: Commonwealth v. Lyons, 367 Pa.Super. 649, 528 A.2d 257 (1987). A petition for allocatur to the Supreme Court was denied.

On May 18, 1988, Lyons filed pro se a petition which collaterally attacked his conviction. Although styled a petition under the Post Conviction Hearing Act, it was more correctly a request for relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., which had become effective on April 13, 1988. Counsel was appointed, an addendum to the petition was filed, and an evidentiary hearing was held before the Honorable James R. McGregor. Post conviction relief, however, was denied. This appeal followed.

Appellant's first contention is that the court in Allegheny County erred when it permitted the Commonwealth to file an information without a preliminary hearing. This issue, however, was not raised in post-trial motions or on direct appeal. In the absence of extraordinary circumstances, therefore, the issue has been waived. See: 42 Pa.C.S. § 9544(b); Commonwealth v. Craddock, 370 Pa.Super. 139, 142-143, 535 A.2d 1189, 1191 (1988).

In order to avoid the effect of an apparent waiver, appellant argues that his trial counsel and subsequent counsel were constitutionally ineffective for failing to move to quash the information and for failing to preserve the absence of a preliminary hearing for appellate review. For counsel to be found constitutionally ineffective, it must be shown that there was arguable merit in the claim not asserted, that the failure to assert the same was not reasonable, and that the defendant was prejudiced thereby. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

"There is no constitutional right, federal or state, to a preliminary hearing." Commonwealth v. Ruza, 511 Pa. 59, 64, 511 A.2d 808, 810 (1986). See: Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974). In Pennsylvania, Pa.R.Crim.P. 141 contains provision for a preliminary hearing whose principal function is to protect the individual against unlawful detention. Commonwealth v. Ruza, supra at 64, 511 A.2d at 810. Under certain circumstances, the attorney for the Commonwealth may be permitted to file an information without a preliminary hearing. Pa.R.Crim.P. 231(a) provides as follows:

(a) When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the statute of limitations will otherwise bar prosecution, an information is necessary in order to extradite the defendant, or a preliminary hearing cannot be held for other good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing.

Under this rule, appellant's fugitive status was not, without more, sufficient "good cause" for filing an information without a preliminary hearing. Commonwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372 (1988); Commonwealth v. Costello, 301 Pa.Super. 537, 448 A.2d 38 (1982). Thus, there is arguable merit to appellant's contentions that he was improperly denied a preliminary hearing and that his trial counsel should have moved to quash the information.

The absence of a preliminary hearing, however, did not so impair the truth determining process as to require that appellant be discharged. Here, the case was tried and the evidence was submitted to the court which, as trier of the facts, found not only that the Commonwealth had established a prima facie case of guilt but that appellant's guilt had been proved beyond a reasonable doubt. Any deficiency in the preliminary hearing procedure, therefore, was harmless. See: Commonwealth v. Ruza, supra; Commonwealth v. Hess, 489 Pa. 580, 589-590, 414 A.2d 1043, 1048 (1980). Cf. Commonwealth v. Ferrari, supra. Because the truth determining process was not impaired by counsel's alleged ineffectiveness, the P.C.R.A. court did not err when it dismissed appellant's petition for post conviction relief. Appellant failed to show that he had been prejudiced by counsel's failure to assert post-trial the absence of a pre-trial preliminary hearing.

The same result is reached by an application of the Post Conviction Relief Act. This Act, at 42 Pa.C.S. § 9543, provides that to be eligible for relief a person must prove by a preponderance of the evidence that, (1) he has been convicted of a crime and (2) "[t]hat the conviction ... resulted from one or more of the following:

(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place."

As we have already observed, appellant has failed to show that the absence of a preliminary hearing in any way undermined the truth determining process so as to render unreliable the trial court's finding of guilt.

Appellant relies upon the decision of the Superior Court in Commonwealth v. Costello, supra, where a failure to provide the defendant with a preliminary hearing resulted in a decision to quash the information and discharge the defendant. We need not determine whether the Costello court correctly discharged a defendant who had been tried and found guilty beyond a reasonable doubt, for in any event that decision is distinguishable from the present case. ² There, the case was before the Superior Court on direct appeal. In the instant case, appellant's conviction was affirmed on a direct appeal in which the absence of a preliminary hearing had not been argued. The matter is now before this Court under the recently enacted Post Conviction Relief Act to determine whether appellant is entitled to P.C.R.A. relief on grounds that all prior counsel were ineffective for failing to preserve and argue on direct appeal the defective preliminary hearing procedure. We hold only that appellant is not entitled to collateral relief under the Post Conviction Relief Act where, as here, the absence of a preliminary hearing did not so undermine the truth determining process as to render unreliable the adjudication of guilt. Therefore, counsel's failure to move pre-trial to quash the information does not require that appellant be discharged.

Appellant also contends that the trial court's finding of a conspiracy was contrary to the weight of the evidence. This issue was raised in post-trial motions, but it was not argued on direct appeal. Instead, counsel argued on direct appeal that the evidence was insufficient to sustain the finding that he was guilty of conspiracy.

The distinction between sufficiency of the evidence and weight of the evidence was discussed in Commonwealth v. Whiteman, 336 Pa.Super. 120, 124-125, 485 A.2d...