Com. v. Sweitzer

Decision Date20 December 1978
Citation395 A.2d 1376,261 Pa.Super. 183
PartiesCOMMONWEALTH of Pennsylvania v. Robert J. SWEITZER, Appellant.
CourtPennsylvania Superior Court

Ralph T. Forr, Jr., Asst. Public Defender, Altoona, for appellant.

Donald E. Speice, Asst. Dist. Atty., Altoona, for Com., appellee.



Appellant contends that the lower court erred in denying him relief after a hearing under the Post Conviction Hearing Act ("PCHA"). 1 Specifically, appellant claims that his trial counsel was ineffective because he did not (i) appeal appellant's convictions for two armed robberies, (ii) file any motion to suppress evidence obtained pursuant to appellant's allegedly unlawful arrest, (iii) object to a witness' testimony that he was appellant's parole officer, and (iv) object to a police officer's reference to appellant's photograph being on file with the local police department. Appellant further claims that he was denied fair trials on two armed robbery charges because the juries could see him handcuffed and behind bars. Lastly, appellant contends that he was denied due process because the notes of testimony from one of his two robbery trials were unavailable. 2 Because we find all of appellant's contentions without merit, we affirm the lower court's order denying him relief.

On May 23, 1973, Altoona police arrested appellant on charges relating to the February 11, 1973 armed robbery at the Sheetz Kwik Shopper and the May 20, 1973 armed robbery at the Skat gas station. On October 11 and 12, 1973, after separate jury trials, the lower court found appellant guilty of the two robberies. On October 15, 1973, the lower court sentenced appellant to two consecutive terms of imprisonment of three and one-half to seven years each on the two convictions for armed robbery. 3 Appellant filed no post-verdict motions or direct appeals. William Haberstroh, Esquire, a court-appointed attorney, represented appellant throughout the proceedings of both armed robbery cases.

On March 16, 1976, appellant filed a Pro se PCHA petition for relief. On May 6 and June 10, 1976, the lower court held a hearing on appellant's petition; the Public Defender office of Blair County represented appellant at the PCHA hearing and on this appeal therefrom. Testimony from the PCHA hearing reveals the following relevant facts:

A) Concerning his failure to appeal his convictions directly, appellant testified that his attorney Haberstroh and the trial court advised him of his appeal rights concerning both convictions and that Haberstroh further advised him that he saw no reason to appeal either case. Appellant claimed that he told Haberstroh to appeal both cases "on the circumstantial evidence" and "took it for granted that he did appeal it on that." Appellant presented copies of two letters, written for him by a fellow inmate at Blair County Prison, which requested Haberstroh to appeal both cases and which, he claimed, were sent to Haberstroh within 30 days after sentencing. Appellant further testified that because he was dissatisfied with Haberstroh's representation of him at the trial he wanted Haberstroh only to appeal the convictions and not to represent him in future matters.

Haberstroh willingly admitted that he advised appellant that he saw no grounds for appeal. However, he testified that appellant never advised him to take appeals and had, in fact, agreed with his advice not to appeal. Haberstroh denied receiving the two letters proffered by appellant and produced other letters from appellant, sent to him after the armed robbery convictions, in which appellant requested his help at a future parole revocation hearing, made no mention of appeals of his robbery convictions, and which, unlike appellant's proffered letters requesting appeals, were addressed to Haberstroh's correct address. Testimony of the record keeper of Blair County Prison indicated that appellant and the inmate who wrote the two letters to Haberstroh requesting appeal for appellant were not in the same prison at the alleged time the letters were written.

B) Concerning the unavailability of a transcript of the Skat trial, appellant testified that he requested transcripts of both robbery trials within 90 days of his sentencing in 1973, did not receive them, made another request in 1975, and then received the Sheetz trial transcript and a letter from the prothonotary that the stenographer's notes to the Skat trial were lost and no transcript could be made of that case. He indicated that the unavailable transcript would show that Kenneth Wertz identified himself as appellant's parole officer in the Skat trial; he admitted that no one referred to any pre-trial identification of him, by photograph, line-up or otherwise, at the Skat trial. The stenographer testified that no one requested the Skat trial transcript until 1975, by which time her notes had been lost. In attempting to reconstruct the events of the Skat trial, Haberstroh and Trooper Meyers, the prosecuting officer of the Skat armed robbery who made contemporaneous notes of all witnesses at that trial, testified unequivocally that Wertz did not testify at all during the Skat trial; Wertz himself could not remember. Haberstroh further testified that no physical evidence or statement of appellant was introduced at the Skat trial.

C) Concerning the legality of appellant's arrest, Wertz and four police officers testified that appellant was arrested on May 23, 1973 for the two armed robberies and not, as appellant claimed, for a parole violation. Police based their arrest of appellant, in major part, upon the oral statements of Mrs. Lennie Otto, appellant's then girlfriend. In her statement to police concerning the Skat robbery, she implicated appellant and confirmed certain information about that robbery which was known only to the police; likewise, her statement concerning the Sheetz robbery implicated appellant, meshed well with the information previously given by two victims of that robbery, and buttressed one eye witness' tentative photographic identification of appellant. The arresting officer testified that, although he did not have the warrants with him when he arrested appellant, he knew that two warrants had been issued for appellant's arrest in connection with the robberies and he arrested appellant for that reason. Appellant and two of his friends testified that police initially arrested him without warrant for a technical parole violation. Appellant also presented evidence that a parole violation hearing was scheduled for May 25, 1973, for failure to maintain employment.

D) Concerning his claim that he was denied fair trials by impartial juries, appellant testified that each day of trial the jurors could see him from the hallway in the "bullpen" of the courtroom, behind bars and handcuffed. Appellant presented no testimony that any juror actually so saw him or that he communicated the alleged problem to his trial counsel.

E) Concerning appellant's claim that Haberstroh was ineffective for not objecting to testimony in the Sheetz trial that Wertz was appellant's parole officer, Haberstroh testified that he did not object to that reference because he wished to use Wertz's testimony to discredit the testimony Lennie Otto had just given. Lennie Otto, appellant's then girlfriend, testified at the Sheetz trial about appellant's actions before and after the armed robbery and his admission that he did the robbery. She had in the past told Wertz that appellant hit her and threatened her with guns, thus violating his parole; as appellant's parole officer, Wertz had investigated and found these accusations unmeritorious. Haberstroh wished to use Wertz's testimony 4 about these prior accusations in order to argue to the jury that Lennie Otto was testifying against appellant out of vindictiveness and that she should therefore not be believed. 5

Concerning the subsequent reference in the Sheetz trial to photographs of appellant on file in the police department, 6 Haberstroh testified as follows:

"A. . . . It could only be prejudicial if it was a reference to a prior arrest and, of course, in that Sheetz case, Mr. Wertz testified as being his Parole Officer so I didn't see any real need to try to avoid the fact that Mr. Sweitzer (appellant) had prior contact with the law."

On June 7, 1977, the lower court denied appellant any relief under PCHA. This appeal followed.

Before reviewing appellant's specific contentions, we note initially that, in general, a PCHA petitioner has the burden of establishing his grounds for post-conviction relief. See Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A.2d 183 (1970). In particular, the burden of establishing ineffectiveness of trial counsel is on appellant. See Commonwealth v. Barnes, 248 Pa.Super. 579, 375 A.2d 392 (1977). The PCHA court has discretion to disbelieve testimony; thus, self- serving or uncorroborated statements on petitioner's behalf do not shift and do not necessarily sustain petitioner's burden of proof, even when the Commonwealth presents no rebuttal evidence. See Commonwealth v. Grandy, 212 Pa.Super. 438, 243 A.2d 188 (1968). In Commonwealth v. Sullivan, 472 Pa. 129, 145, 371 A.2d 468, 476 (1977), our Supreme Court stated that "(t)he findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. . . . Consequently, this Court will not disturb its findings if they are supported in the PCHA record. . . . This is true even when the record could support a contrary holding." (citations omitted). See Commonwealth v. Lee, 478 Pa. 70, 385 A.2d 1317 (1978); Commonwealth v. Wilder, 469 Pa. 237, 364 A.2d 1357 (1976); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968); Commonwealth v....

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    • United States
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    ... ... 500, 424 A.2d 1302 (1981); Commonwealth v. Ford, 491 ... Pa. 586, 421 A.2d 1040 (1980); see also Commonwealth v ... Sweitzer, 261 Pa.Super. 183, 395 A.2d 1376 (1978). We ... find no reason to reverse the PCHA court's determination ... concerning its findings of fact and ... ...
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