allocatur granted July 13, 1976
How later courts described this case
- allocatur granted July 13, 1976
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Spaeth, J.:
I join Judge Hoffman’s dissenting opinion, that *66 appellant Howell should be awarded a new trial. I would also award a new trial to appellant Hinkley.
Granted that the doctrine of fundamental error is no more. Still, when two defendants are tried together; when the same error is made as to both defendants; when the attorney for each defendant is- incompetent and therefore fails to protect the record; and when on appeal the new attorney for one defendant points out the error, and accordingly wins a new trial for his client; in these circumstances I think it does no great violence to Clair or Dancer to award the other defendant a new trial too. He will get it as soon as he gets competent counsel, in a PCHA hearing. I would give it to him now.
Hoffman, J., joins in this opinion.