Petition for Writ of Certiorari — Ryan v. Pennsylvania
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7ge ¢F AG i Supreme Court, U.S,
FILED
FEB 22 9
No. JOSEPH F. SAPNTOL, JR
conan: CUBR,
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1989
COMMONWEALTH OF PENNSYLVANIA,
Respondent
vs.
BERNARD D. RYAN,
Petitioner.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE
COMMONWEALTH OF PENNSYLVANIA
Kim Wm. Riester, Esquire*
SCOTT, VOGRIN & RIESTER
1320 Frick Building
Pittsburgh, PA 15219
(412) 261-0905
Counsel for Petitioner,
Bernard D. Ryan
* Counsel of Record
QUESTIONS PRESENTED FOR REVIEW
DID THE COMMONWEALTH OF
PENNSYLVANIA VIOLATE PETITIONER'S
CONSTITUTIONAL RIGHTS UNDER THE
FIFTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES
OF AMERICA, THE PROHIBITION
AGAINST DOUBLE JEOPARDY, WHEN THE
PENNSYLVANIA SUPREME COURT RULED
THAT PETITIONER'S PLEA OF GUILTY
WAIVED THE DOUBLE JEOPARDY ISSUE.
WHETHER THE RULING OF THE SUPREME
COURT OF THE COMMONWEALTH OF
PENNSYLVANIA THAT A GUILTY PLEA
WAIVES A VIOLATION OF THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT OF THE CONSTITUTION OF
THE UNITED STATES, IS IN
CONTRAVENTION OF DIRECT
DECISIONAL AUTHORITIES OF THE
SUPREME COURT OF THE UNITED
STATES OF AMERICA.
WHETHER THE COMMONWEALTH OF
PENNSYLVANIA VIOLATED
PETITIONER'S CONSTITUTIONAL
RIGHTS UNDER THE SIXTH AMENDMENT
OF THE CONSTITUTION OF THE UNITED
STATES OF AMERICA, ENTITLING HIM
TO EFFECTIVE ASSISTANCE OF
COUNSEL WHEN THE SUPREME COURT OF
THE COMMONWEALTH OF PENNSYLVANIA
RULED THAT THE FAILURE OF COUNSEL
TO RAISE A DOUBLE JEOPARDY CLAIM
CONSTITUTES INEFFECTIVE
ASSISTANCE OF COUNSEL, HOWEVER,
THAT THE DOUBLE JEOPARDY CLAIM
WAS WAIVED.
PARTIES BELOW
The following individuals were
parties to the proceeding below:
Commonwealth of Pennsylvania
Bernard D. Ryan
ii
TABLE OF CONTENTS
eo a Be er |
POPCLOS Gee: secre os Se eee oe 1
c. Table of Authorities .. 1-2
II. Reported Opinions Below . . 3
III. Statement of Jurisdiction . 4
IV. Constitutional and Statutory
a gt | a a ee
Vv. Statement of the Case ... 9
A. Procedural History . 9
B. Statement of Facts . 13
VI. Reasons for Allowing
a gn
A. Fifth Amendment of the
Constitution of the
United States of
America Double Jeopardy
ViGieusen. « « »~s « « 33
B. Decision of Appellate
Court of the Commonwealth
of Pennsylvania in Conflict
with Decisional Authorities
of the United States
Supreme Court... . 21
e. Sixth Amendment of the
Constitution of the
United States of America -
Ineffective Assistance of
Counsel ay tg? gg en ee
iii
VII.
Comeiweiem «.««+«+¢+e«vwv#« 38
Appendix
A.
2.
ae
2.
Judgment of the Supreme
Court of Pennsylvania
(No. W.D. Appeal Docket
Seen) sss @ se ee oe
Plurality Opinion .. 13
Concurring Opinion 14-16
Concurring Opinion. . 17
Order of the Superior
Court of Pennsylvania
(No. 874 Pittsburgh
Tee ae eee aes Sw
Memorandum
Opinion... . . 20-30
Dissenting Opinion . 31
Memorandum Opinion and
Order of Court of
the Court of Common Pleas
of Elk County,
Pennsylvania ... 32-44
Pleading - Supplemental
Post-Conviction Hearing
Act Petition... 45-52
Order of Supreme Court
Pennsylvania
(No. 62 Pittsburgh
ee a |
Per Curiam Order .. 54
Memorandum
Opinion ..... $5-61
iv
of
I. Table of Authorities
CASES:
Blackledge v. Perry, 417 U.S. 21
PAGE
Qe .30 (29746) « 6 « 4 «© © «= » 23,23
Commonwealth v. Anthony, 504 Pa. 551,
7S &.24@ 4303 (3064) «. «© © wo
Commonwealth v. Lawson, 519 Pa. 504,
22
549 A.2d 107 (1988) .... 25,26
Commonwealth v. Shaffer, 447 Pa. 91,
288 A.2d 727, cert. denied,
Shaffer v. Commonwealth,
409 U.S. 867 (1972) ‘ « e
Downum v. United States, 372 U.S.
PUTER oe Sh se
Green v. Estelle, 601i F.2d 877,
878 (5th Cir. 1979) .
Illinois v. Somerville,
410 U.S. 458 (1973)
Menna v. State of New York,
18
18
423 U.S. 61 (1975) . .. - 19,20,22
Strickland v. Washington, 466 U.S.
ek
United States v. Broussard,
645 F.2d 504 (5th Cir. 1981)
25
20
United States
590 F.2d
United States
424 U.S.
United States
v. DeFillipo,
1228 (1979) .
v. Dinitz,
600 (1976)
v. Jorn,
400 U.S.470 .. .
United States
9 Wheat.
v. Perez,
579 (1824)
22 U.S.
20
19
18
18
II. Reported Opinions Below
On January 8, 1990, the Supreme Court
of Pennsylvania, Western District, at No. 2
W.D. Appeal Docket 1989, ordered and
adjudged that the judgment of the Superior
Court of Pennsylvania is reversed and
Appellee's rape conviction was reinstated.
(Not yet reported).
The Superior Court of Pennsylvania at
No. 874 Pittsburgh, 1987, entered May 19,
1988, reversed the Order of Court of the
Court of Common Pleas of Elk County,
Pennsylvania, Criminal Division, entered on
June 8, 1987, at No. 89 of 1978 (379 Pa.
Super. 664, 545 A.2da 388 (1988)).
(Reported without Opinion).
The Opinion of June 8, 1987, Court of
Common Pleas of Elk County, Criminal
Division, denying Petitioner's Post-
Conviction Relief at No. 89 of 1978. (Not
reported).
ee eT ee ee
The judgment of the Supreme Court
of Pennsylvania at No. 2 W. D.
Appeal Docket 1989, was entered,
filed and dated on January 8,
1990.
The Constitution of the United
States of America, Article eo #
Section 2, which states "the
supreme Court shall have
appellate Jurisdiction, both as
to Law and Fact, with such
Exceptions, and under such
Regulations as the Congress shall
make.
This Petition is directly derived
from the Act of Congress, 28
United States Code §1257(3).
This Petition is directly derived
from Supreme Court Rule No.
17(1) (b), which recognizes
jurisdiction in the _ following
circumstances:
When a state court of last
resort has decided a federal
question in a way in
conflict with the decision
of another state court of
last resort or a federal
court of appeals;
This Petition is directly derived
from Supreme Court Rule No.
17(1)(c), which recognizes
jurisdiction in the _ following
circumstances:
When a state court or
federal court of appeals has
decided an important
question of federal law,
which has not been but
should be settled by this
court, or has decided a
federal question in a way in
conflict which applicable
provisions of this Court.
IV. sti j ovisions
The constitutional and statutory
provisions at issue are set forth as
follows:
A. The Constitution of the United
States of America, Article V, reads as
follows:
No person shall be held
to answer for a
capital, or otherwise
infamous crime, unless
on a presentment or
indictment of a Grand
Jury, except in cases
arising in the land or
naval forces, or in the
Militia, when in actual
service in time of War
or public danger; nor
shall any person be
subject for the same
offense to be twice put
in jeopardy of life or
limb; nor- shall _ be
compelled in any
criminal case to be a
witness against
himself, nor be
deprived of life,
B.
liberty or property,
without due process of
law; nor shall private
property be taken for
public use, without
just compensation.
The Constitution of the United
States of America, Article VI,
follows:
In all criminal
prosecutions, the
accused shall enjoy the
right to a speedy and
public trial, by an
impartial jury of the
State and district
wherein the crime shall
have been committed,
which district shall
have been previously
ascertained by law, and
to be informed of the
nature and cause of the
accusation; to be
confronted with’ the
witnesses against him;
to have compulsory
process for obtaining
witnesses in his favor,
and to have the
Assistance of Counsel
for his defence.
reads as
Cs
Commonwealth of Pennsylvania,
The Constitution
reads as follows:
No person shall, for
any indictable offense,
be proceeded against
criminally by
information, except in
cases arising in the
land or naval forces,
or in the militia, when
in actual service, in
time of war or public
danger, or by leave of
the court for
oppression or
misdemeanor in office.
No person shall, for
the same offense, be
twice put in jeopardy
of life or limb; nor
shall private property
be taken or applied to
public use, without
authority of law and
without just
compensation being
first made or secured.
of
the
Article 10,
V. Statement of the Case
Petitioner, Bernard D. Ryan, seeks a
Writ of Certiorari to the Supreme Court of
the Commonwealth of Pennsylvania to review
a judgment of that Court reversing the
Order of the Superior Court of Pennsylvania
and reinstating a Judgment of Sentence for
a criminal conviction for the crime of
Rape, originally entered on November 13,
1978. Post-conviction relief seeking
dismissal, which is the subject of the
within appeal, was denied by Order of Court
of the Court of Common Pleas of Elk County
on June 8, 1987, at No. 89 of 1978.
A. cedu isto
Petitioner, arrested in June, 1978,
was charged with Rape, Aggravated Assault
and Indecent Assault. On September 11,
1978, a jury was impaneled and sworn to
hear the trial of the case. Trial was
scheduled to commence on October 11, 1978,
in the Court of Common Pleas of Elk County
before the Honorable Paul B. Greiner,
Presiding Judge. On October 10, 1978, the
District Attorney of Elk County, notified
the Court Administrator that a Commonwealth
witness was ill, unavailable to testify on
October 1% 1978, and requested a
continuance or postponement. ee
On November 8, 1978, another jury was
selected, impaneled and sworn. On November
13, 1978, the Appellant entered a plea of
guilty to the charge of Rape, thereby
discharging the second jury. A.3.
Following the entry of the plea, the
Petitioner, pro se, filed certain motions
pursuant to the state post conviction
hearing act statute, (Title 42 Pennsylvania
‘WA, __" refers to the appropriate page
of the separate Appendix filed
contemporaneously herewith.
10
aieenaemieaaaaia tae aaa
\
Consolidated Statues Annotated, Section
9541 et seq.), which were later appealed by
Attorney James N. Daghir. The issue of
double jeopardy was not raised by appellate
counsel. (See Number 1316 Pittsburgh, 1983
in the Superior Court of Pennsylvania,
Western District). Following an
affirmation of the conviction, Petitioner
filed motions and appealed pro se to the
Superior Court of the Commonwealth of
Pennsylvania (See No. 00062 Pittsburgh,
1986 in the Superior Court of Pennsylvania,
Western District, Commonwealth v. Bernard
Ryan) and by Order of Court dated June 30,
1986, the Superior Court reversed and
remanded the case to determine if "trial
and P.C.H.A. counsel were ineffective for
failing to raise the double jeopardy
Claim." A.5, 55-61.
Within counsel then filed appropriate
motions raising the claim for violation of
the Double Jeopardy Clause of the Fifth
11
Amendment of the Constitution of the United
States of America and the applicable
provisions of the Constitution of the
Commonwealth of Pennsylvania, Article I,
Section 10, pursuant to the Post Conviction
Hearing Act of Pennsylvania. (Title 42
Pennsylvania Consolidated Statues
Annotated, Section 9541 et seq.). A.45-
§2. Following a hearing, the Court of
Common Pleas, by Order of Court, denied the
post conviction relief. An appeal was
taken to the Superior Court of Pennsylvania
and an Order entered on May 19, 1988, at
No. 874 Pittsburgh, 1987, reversing the
Order of Court of Elk County and vacating
the conviction based upon a violation of
the Double Jeopardy Clause of the
Constitution of the United States of
America. A.19.
The Respondent herein, petitioned for
allocatur to the Supreme Court of
Pennsylvania at No. 2 W.D. Appeal Docket
12
‘aaa
1989, on January 8, 1990. The Supreme
Court of Pennsylvania reversed the Superior
Court of Pennsylvania and reinstated the
conviction of the lower Court by Order and
Opinion dated January 9, 1990. A.1-18.
B. t act
Petitioner, arrested in June, 1978,
was charged with Rape, Aggravated Assault
and Indecent Assault at Criminal Number 89
of 1978. On September 11, 1978, a jury was
impaneled and sworn to hear the trial of
| the case. Trial was scheduled to commence
on October 11, 1978, in the Court of Common
Pleas of Elk County before the Honorable
Paul B. Greiner, Presiding Judge. On
October 10, 1978, the District Attorney of
Elk County, counsel for Respondent,
notified the Court Administrator that a
Commonwealth witness was ill, unavailable
to testify on October 11, 1978, and
13
requested a continuance or postponement.
At some unknown date after September 11,
1978, the case was rescheduled for November
15, 1978. Another jury was’ selected,
impaneled and sworn on November §, 1978.
On November 13, 1978, the Petitioner
entered a plea of guilty to the charge of
Rape, thereby discharging the second jury.
A.1-6.
Trial counsel for Petitioner admitted
at an Evidentiary Hearing conducted on
January i5, 1987, that prior to the
acceptance of the plea by the Trial Court,
that trial counsel had not ascertained
whether the Commonwealth witness was
available for trial on November 15, 1978,
or would ever be available. Trial
counsel never raised an objection to the
dismissal of the jury on September 11,
1978, the impaneling of the November 8,
1978 jury, or the entry of the plea
thereafter. A.32-44.
14
The Supreme Court of the Commonwealth
of Pennsylvania in a Plurality Opinion,
with Mr. Justice McDermott writing the
Opinion with Mr. Chief Justice Nix filing a
Concurring Opinion with the joinder of Mr.
Justice Papadakos, Mr. Justice Lawson
filing a Concurring Opinion and Mr. Justice
Zappala concurring the result, implicitly
agreed with the Superior Court of the
Commonwealth of Pennsylvania, A.19-30, that
the dismissal of the Petitioner's jury, sua
sponte, by the trial court, constituted a
violation of the Double Jeopardy Clause.’
A.6-13. Particularly, the Concurring
Opinion of Mr. Chief Justice Nix, held that
the trial court failed to ascertain the
*The various Opinions of the Supreme
Court of the Commonwealth of Pennsylvania
do not delineate between violations of the
Double Jeopardy Clause of the Fifth
Amendment of the Constitution of the United
States of America or Article I, Section 9 of
the Constitution of Pennsylvania, although
Petitioner's original pleadings and
appellate brief clearly raised both claims.
15
actual condition of the allegedly ill
Commonwealth witness, which prevented a
finding of a manifest necessity to justify
a declaration of a mistrial and avoidance
of a double jeopardy claim upon retrial.
A.14-16. The Supreme Court of
Pennsylvania, in the Concurring Opinion,
opined that the failure of counsel to raise
the double jeopardy claim, as well as
counsel's acquiescence in a guilty plea
under the circumstances, clearly
constituted ineffective assistance of
counsel. A.14-16.
However, the Supreme Court of the
Commonwealth of Pennsylvania reversed the
Superior Court of Pennsylvania, as well as
the Judgment of Sentence, and reinstated
the conviction based upon the conclusion of
law that by virtue of either of
Petitioner's guilty plea, or his failure to
raise the claim in a previous appeal, that
such issue was waived. A.1-13.
16
VI. Reasons For Allowing The Writ
A. The highest Court of the Commonwealth
of Pennsylvania while finding that the
Double Jeopardy Clause of the
Constitution of the United States has
been violated, reversed the judgment
of sentence and _ reinstated the
conviction on the basis that a
subsequent guilty plea waived such
claim.
The highest Court of the Commonwealth
of Pennsylvania agreed with Petitioner's
original contention as contained in his
Petition for Post Conviction Hearing Act
Relief in the Court of Common Pleas of Elk
County, and the Superior Court of
Pennsylvania at No. 874 Pittsburgh, 1987,
that his fundamental, constitutional right
against being twice placed in jeopardy
17
under the Fifth Amendment of the
Constitution of the United States of
America was violated. The Appellate Courts
of Pennsylvania held that when the Trial
Court, sua sponte, discharged a jury based
upon an allegation of the illness of a
witness without making a record to
ascertain whether such declaration of a
mistrial constituted a manifest necessity
without Petitioner's request or consent,
such a violation occurred.° (See
Commonwealth v. Ryan, Concurring Opinion).
See United States v. Perez, 22 U.S. 579, 9
Wheat. 579 (1824); Downum v. United States,
372 U.S. 734 (1963); United States v. Jorn,
400 U.S. 470; inois v omerville, 410
3Pennsylvania Appellate Courts long
recognized the fundamental principle of the
prohibition against Double Jeopardy as
contained in the Fifth Amendment of the
United States Constitution, as well as
Article I, Section 10 of the Constitution
of the Commonwealth of Pennsylvania. See
W Vv er, 447 Pa. 91, 288
A.2ad 727, cert. denied, Shaffer v.
Commonwealth, 409 U.S. 867 (1972).
18
U.S. 458 (1973); United States v. Dinitz,
424 U.S. 600 (1976).
In direct contradiction to decisional
authorities of your Honorable Court the
Pennsylvania Court reversed the Judgment of
Sentence and reinstated the conviction on
the theory that the Petitioner's subsequent
guilty plea waived such issue. It is well-
settled that the entry of a guilty plea
does not constitute a waiver of the right
to claim that the criminal indictment
should be dismissed under the Double
Jeopardy Clause and/or Due Process of the
Fifth Amendment of the Constitution of the
United States of America. In the hallmark
case of Menna v. State of New York, 423
U.S. 61 (1975), your Honorable Court held,
inter alia:
Where the State is
precluded by the United
States Constitution
from hauling defendant
into court on a charge,
federal law requires
that a conviction on
that charge be set
19
nasi
aside even | ae
conviction was entered
pursuant to a counseled
guilty plea.
Blackledge _v. Perry,
417 U.S. 2130, 94 S.Ct.
2098, 2103, 40 L.Ed.2d
628 (1974).°
Menna v. State of New York, supra, 423 U.S.
at 424. See also j tates v.
DeFillipo, 590 F.2d 1228 (1979).
Accordingly, the plurality Supreme Court of
Pennsylvania has rendered a judgment, which
violates Petitioner's rights under the
Fifth Amendment of the Constitution of the -
United States.
‘See also Green v. Estelie, 601 F.2d
877, 878 (5th Cir. 1979); United States v.
Broussard, 645 F.2d 504 (5th Cir. 1981).
20
B. The holding of the Supreme Court of
the Commonwealth of Pennsylvania that
the entry of the guilty plea
constituted a waiver of the violation
of the Double Jeopardy Clause of the
Fifth Amendment of the Constitution of
the United States of America is in
direct convention of decisional
authorities of your Honorable Court.
Petitioner respectfully submits that
the opinion and judgment of the Supreme
Court of the Commonwealth of Pennsylvania
should be reversed and/or vacated and that
the conviction and Judgment of Sentence
must be reversed. Petitioner couched his
original claims for post-conviction relief
on the basis of the Constitution of the
United States of America, as well as the
ancillary provisions of the Constitution of
the Commonwealth of Pennsylvania, (Article
I, Section 10). In reversing its own
21
Superior Court judgment of sentence, the
Pennsylvania Supreme Court, sua sponte,
relied on Commonwealth v. Anthony, 504 Pa.
551, 475 A.2d 1303 (1984). This authority
and reliance thereon is in direct conflict
with decisional authorities of this
Honorable Court in Menna v. State of New
York, supra, 423 U.S. at 242 and Blackledge
v. Perry, 417 U.S. 21 at 30 (1974). As Mr.
Justice Stewart eloquently stated in
Blackledge Vv. Perry, the following
principles apply in the case-at-bar:
Last Term in Robinson
v. Neil, 409 U.S. 505,
35 L.Ed.2d 29, 93 S.Ct.
876, in explaining why
the Double Jeopardy
Clause is distinctive,
the Court noted that
"its practical result
is to prevent a trial
from taking place at
all, rather than to
prescribe the
procedural rules that
govern the conduct of a
trial.®* Id., at 509,
35 L.Ed.2d 29. While
our judgment today is
not based upon the
Double Jeopardy Clause,
we think that~ the
quoted language aptly
describes the due
process right upon
which our judgment is
based. The "practical
result" dictated by the
Due Process Clause in
this case is that North
Carolina simply could
not permissibly require
Perry to answer to the
felony charge. That
being so, it follows
that his guilty plea
did not foreclose him
from attacking his
conviction in the
Superior Court
proceedings through a
federal writ of habeas
corpus.
Blackledge _v. Perry, 417 U.S.
(1974).
23
i at 30
C. The highest Court, the Supreme Court
of the Commonwealth of Pennsylvania,
has in a Plurality Opinion determined
that Petitioner's constitutional right
under the Sixth Amendment of the
Constitution of the United States of
America, entitling him to the
effective assistance of counsel, was
violated when trial counsel failed to
raise the Double Jeopardy claim, but
ruled that the claim was waived.
In the Concurring Opinion of Mr. Chief
Justice Nix of the Supreme Court of the
Commonwealth of Pennsylvania, the Court
addressed Petitioner's argument that the
entry of the guilty plea could not
constitute a waiver of constitutional
claims and if it did so, it was not based
upon the effective assistance of counsel
and therefore, was not knowing ’- and
24
voluntary. Citing the landmark case of
Strickland v. Washington, 466 U.S. 668
(1984). The Concurring Opinion, however,
determined that because the Petitioner had
previously filed a Petition for Post
Conviction Relief, the claim of ineffective
assistance of counsel was waived based upon
the authority of Commonwealth v. Lawson,
519 Pa. 504, 549 A.2d 107 (1988). In
Lawson, the Pennsylvania Supreme Court
attempted to strictly proscribe the
repeated and abusive use of post conviction
relief petitions requiring that a
subsequent petition should be dismissed
absent a "strong porima facie showing.
that a miscarriage of justice may have
occurred. Commonwealth v. Lawson, supra,
at 113, 549 A.2d at 112. The Concurring
Opinion summarily applied Lawson in this
case to the constitutional right of a
violation of the Double Jeopardy Clause
and/or the Due Process Clause of the Fifth
25
Amendment of the Constitution of the United
States of America, ruling that the abortion
of such a claim does not constitute a
miscarriage of justice and therefore, is
waived. The application of the rule of
Lawson by the Pennsylvania Supreme Court in
the instant case is in error since the
principle in Lawson, at most, can apply
only to a non-constitutional violation.
More importantly, the application of
Lawson in the instant case is in violation
of Petitioner's constitutional rights both
under the Fifth Amendment of the
Constitution of the United States of
America requiring Due Process of Law and
the Sixth Amendment of the Constitution of
the United States requiring effective
assistance of counsel, as well as
prohibitions against violation of the
Double Jeopardy Clause of the Fifth
Amendment of the Constitution of the United
States of America. Petitioner
i
a ee ee ee eee
Se a ee ee ea le
respectfully submits that your Honorable
Court cannot condone the application by a
State Court, seeking to limit post
conviction relief for two violations of
constitutional law.°
The Petitioner respectfully submits
that the Supreme Court of Pennsylvania has
misapplied its own decisional authority or,
more importantly, has applied decisional
authority in contravention of Petitioner's
constitutional rights under the Fifth and
*parenthetically, the Pennsylvania
Supreme Court in applying Lawson, held that
the ineffective assistance of counsel for
the failure to plead Double Jeopardy could
have been, but was not put forth in the
first Post Conviction Hearing Act Petition
and thus, was waived. The Court obviously
avoided Appellee's contention that such a
failure in and of itself constituted
ineffective assistance of appellate counsel.
In Appellee's first pro se petition, raising
such issue to the Superior Court of the
Commonwealth of Pennsylvania at 62
Pittsburgh 1978, Appellee was successful to
the extent that the Superior Court reversed
and remanded the case by Order of June 30,
1986, to determine "if trial and PCHA
counsel were ineffective for failing to
raise the double jeopardy claim." A.54-61.
27
Sixth Amendments of the Constitution of the
United States of America. Simply stated,
Petitioner's previous guilty plea and
counsel's failure to raise the claim of
double jeopardy, cannot be deemed to
constitute a waiver of such issue. This is
especially accurate when the pro se post
conviction relief was successful, at least,
to the extent the case was remanded to
determine if the previous trial and/or
appellate counsel was ineffective.
Ironically, Petitioner's appeal after
remand was deemed to be meritorious by the
Superior Court of Pennsylvania, A.54-61,
and inferentially by the Supreme Court of
the Commonwealth of Pennsylvania in the
concurring Opinion of Mr. Chief Justice
Nix. A.14-16.
The Petitioner respectfully requests
your Honorable Court to adjudge, based upon
the Concurring Opinion's finding that the
failure to raise such claim constitutes
ineffective assistance of both trial
counsel and appellate counsel in violation
of the Sixth Amendment of our Constitution
that Petitioner's right to assert a
violation of his constitutional rights has
not been waived. Petitioner urges your
Honorable Court to decree that Petitioner's
assertion of such violation of his rights
does not constitute an abuse of the post
conviction relief process.
29
VII. Conclusion.
For these reasons, Petitioner, Bernard
D. Ryan, asks that a writ of certiorari
issue to the Supreme Court of the
Commonwealth of Pennsylvania and to
thereafter vacate the Order of the Supreme
Court of Pennsylvania, which illegally
reinstated the Judgment of Sentence and
conviction.
Respectfully submitted,
SCOTT, VOGRIN & RIESTER
BY ao (be 22
Kit” Wm. Riester, Esquire*
Attorney for Petitioner
SCOTT, VOGRIN & RIESTER
1320 Frick Building
Pittsburgh, PA 15219
(412) 261-0905
* Counsel Of Record
30
SAA E B®
TABLE OF CONTENTS OF APPENDIX
Judgment of the Supreme Court of
Pennsylvania (No. W.D. Appeal Docket
1989) o o e . o e. e se e - . yt
1. Plurality Goimiem ..... 33
2. Concurring Opinion .. 14-16
3. Concurring Opinion ... . 17
Order of the Superior Court of
Pennsylvania (No. 874 Pittsburgh
1987) . +e a2 . . 7 e . e e e 19
1. Memorandum Opinion .. 20-30
2. Dissenting Opinion .... 31
Memorandum Opinion and Order
of Court of the Court of Common
Pleas of Elk County,
Pennsylvania ........ 32-44
Pleading - Supplemental Post-
Conviction Hearing Act
POELENOR 2 ss 6 6 ee ee le ]|=6SG G2
Order of Supreme Court of
Pennsylvania (No. 62 Pittsburgh
1986) _ _ = ca . . 7 * . - 53
1. Per Curiam Order .... 54
2. Memorandum Opinion . 55-61
SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF
PENNSYLVANIA,
No. 2 W.D. Appeal
Docket 1989
APPELLANT Appeal from the Order
of the Superior Court
entered May 19, 1988
at No. 874 Pittsburgh
1987 reversing the
Order of the Court of
)
)
)
)
)
vs. )
)
APPELLEE ) Common Pleas of Elk
)
)
)
)
)
)
)
)
)
)
BERNARD D. RYAN,
County, Criminal
Division entered June
8, 1987 at No. 89 of
1978
379 Pa. Super. 664,
545 A.2d 388 (1988)
Submitted: September
25, 1989_
ON CONSIDERATION WHEREOF, it is now ordered
and adjudged by this Court that’ the
judgment of the SUPERIOR COURT OF
PENNSYLVANIA by, and the same is, hereby
REVERSED AND APPELLEE'S RAPE CONVICTION
REINSTATED.
/S/Irma T. Gardner
Deputy Prothonotary
SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF
PENNSYLVANIA,
No. 2 W.D. Appeal
Docket 1989
APPELLANT Appeal from the Order
of the Superior Court
entered May 19, 1988
at No. 874 Pittsburgh
1987 reversing the
Order of the Court of
)
)
)
)
)
vs. )
)
)
APPELLEE ) Common Pleas of Elk
)
)
)
)
)
)
)
)
)
)
BERNARD D. RYAN,
County, Criminal
Division entered June
8, 1987 at No. 89 of
1978
379 Pa. Super. 664,
545 A.2d 388 (1988)
Submitted: September
25, 1989
OUNC OUR
MR. JUSTICE MCDERMOTT
FILED: JANUARY 8, 1990
Before the Court for resolution is the
appellant Commonwealth's appeal from an
order of the Superior Court (memorandum
opinion by Watkins and Cercone, JJ., with
Olszewski, J., dissenting) which arrested
the judgment of sentence and discharged the
Appellee Bernard D. Ryan. The pertinent
A.2
facts are as set forth below.
In June, 1978, the appellee was
arrested and charged with rape (18 Pa.
C.S.A. §3121), aggravated assault (18 Pa.
C.S.A. §2702 and indecent assault (18 Pa.
C.S.A. §3126). The crimes occurred in Elk
County, Pennsylvania. A trial was
scheduled to begin on October 10, 1978, the
Court was notified by the District
Attorney, through the Court Administrator,
that an essential Commonwealth witness was
ill and would not be available to testify
the next day at trial. Consequently, the
Commonwealth requested a continuance or a
postponement in the alternative. On
November 8, 1978, a second jury was
selected and sworn, with the trial
scheduled to being on -November 15, 1978.
On November 13, 1978, before the start of
trial, the appellee pleaded guilty to the
charge of rape and the second jury was
dismissed. Subsequently, the appellee was
A. 3
sentenced to one and one-half (1 1/2) to
three (3) years imprisonment, pursuant to
the agreed upon plea-bargain. There was no
direct appeal from the judgment of
sentence.
After the appellee completed his
sentence and was released, he filed his
first PCHA petition challenging the
validity of his conviction on November 29,
19 82. Simultaneously, he also filed a
motion to withdraw his guilty plea. The
lower court denied the petitions, and he
appealed to the Superior Court, which
affirmed the judgment of the lower court on
April 4, 1985 at No. 1316 Pittsburgh 1983.
We subsequently denied his petition for
allowance of appeal on September 23, 1985.
The appellee then filed a second PCHA
petition, pro se, in which he argued that
trial counsel was ineffective for failing
to raise trial counsel's ineffectiveness as
to this issue. The petition was summarily
A, 4
dismissed by the Elk County Court of Common
Pleas, and a pro se appeal was then filed
with the Superior Court.
The Superior Court found the trial
court record wholly inadequate as to the
rationale behind the dismissal of the first
jury. The case was remanded for a hearing
and determination of whether prior counsel
were ineffective in failing to raise the
issue of double jeopardy.
On remand, the same judge who presided
over the case in 1978 conducted the
evidentiary hearing, the originai district
attorney on the case, the original defense
counsel, and the previously unavailable
Commonwealth witness all testified at the
hearing. At the close, the court dismissed
the petition and an appeal was taken to the
Superior Court.
On appeal four issues were raised.
The court considered only the issue of
whether the respondent's prior counsel were
A.5
ineffective for failing to raise the double
jeopardy issue. The Superior Court found
that the trial court abused its discretion
in finding "manifest necessity" to declare
a mistrial, which consequently had the
effect of placing the appellee in double
jeopardy. The Court noted that when the
trial court declared a mistrial, no
contemporaneous record was made which would
have reflected the evidence presented, if
any, the understanding of the court or the
parties, or whether appellant had agreed to
the grant of a mistrial. Accordingly, the
trial court's order was’ reversed, the
judgment of sentence arrested, and the
respondent was discharged. The
Commonwealth now appeals.
The Commonwealth's appeal presents
essentially three issues: whether the
Superior Court erred when it arrested the
trial court's judgment on the basis of
finding a lack of "manifest necessity" to
A. 6
———
declare a mistrial, whether counsel were
ineffective for failing to raise the issue;
and whether the relief granted by the
Superior Court of Pennsylvania No. 874
Pittsburgh 1987, is in error as contrary to
our holding in Commonwealth v. Lawson, 519
Pa. 504, 549 A.2d 107 (1988).
Although the Commonwealth articulates
several arguments of substantial merit,
there is a larger issue before us, and that
issue is whether the Superior Court's
holding is contrary to our ruling in
Commonwealth v. Anthony, 504 Pa. 551, 475
A.2d 1303 (1984), a case which addressed
the significance of the guilty plea for one
who filed a PCHA petition seeking a
reversal of his conviction. Appellee
argues trial counsel and counsel at his
first PCHA hearing were ineffective for
failing to raise the issue of double
jeopardy, and thus his conviction should
not stand. However, irrespective of the
4.7
procedural issues raised by the parties,
the fact the appellee pleaded guilty to the
charge of rape is of vital significance.
As we have held:
"A guilty plea is an acknowledgement
by a defendant that he participated in
the commission of certain acts with a
criminal intent; he acknowledges the
existence of facts and intent; facts
he acknowledges may or may not be
within the powers of the Commonwealth
to prove."
Anthony, supra at 558, 1307.
A defendant may plead guilty for any
reason: to shield others, avoid further
exposure, to diminish the penalty, to be
done with the matter, or any secret reason
that appeals to his needs. id. The
appellee pled guilty after the declaration
of the mistrial and after the second jury
was sworn in, but before the commencement
of the second trial. He himself decided to
acknowledge his guilt by pleading guilty
prior to the beginning of the second trial.
The plea of guilt admits that the facts and
intent occurred, and is a confession not
A.6
only of what the Commonwealth might prove,
but also as to what the defendant knows to
have happened. Id. There is no evidence
on record that would indicate that the
appellee was coerced into pleading guilty
by the fact that his counsel failed to
object on the issue of double. What is
generally and most objectively accepted is
that a plea is offered to relieve
conscience, to set the record straight and,
as earnest of error and repentance, to
accept the penalty. Id.
The record indicates that appellee's
change of heart regarding his
acknowledgement of guilt came substantially
after he had served his sentence in prison.
The appellee was released on parole after
his imprisonment for the Elk County rape
conviction he is now appealing before us.
Following his release on parole, the
appellee was tried and convicted for a
rape-related offense in Warren County. In
A. 9
this appeal, he is attacking his Elk County
conviction because of the consideration it
was given as a prior offense by the
sentencing judge in the subsequent Warren
County case for which he is now imprisoned.
Should this court ultimately overturn the
prior conviction in Elk County, the
sentencing judge in Warren County would be
required to resentence hin.
The appellee clearly had the
opportunity to raise this issue of
ineffective assistance of counsel in a
post-trial motion or in his first PCHA
petition. He elected not to do so. It is
obvious from the record that his first PCHA
petition and this second PCHA petition,
filed pro se, have been filed din order to
attack the validity of the sentence he
received after being convicted of rape in
Warren County. The appellee is attacking
his first rape conviction by claiming his
counsel was ineffective for failing to
A.10
raise a double jeopardy claim; however, if
a defendant voluntarily, knowingly and
intelligently wishes to acknowledge facts
that in themselves constitute an offense,
that acknowledgment is independent of the
procedures o proving or refuting them. Id.
The transcript of the guilty plea colloquy
indicates that the defendant made a
voluntary, knowing, and intelligent plea of
guilty, and was fully aware of the
consequences of his actions.
It is well established that’ the
defendant who pleads guilty is there to
voluntarily say what he knows occurred, and
that he will accept the legal meaning and
legal consequences of what he had done. Id.
In this instance, we have an appellee
who is unwilling to accept the consequences
of his acknowledgement of the felonious act
he committed in 1978. -to reiterate, he
has filed this petition because he has been
convicted in Warren county for the rape
A. 11
related offenses, and this 1978 conviction
became a burden on his second conviction.
The appellee is utilizing a _ procedure
generously afforded to him by the PCHA
legislation to attack another conviction in
an entirely unrelated matter in the hopes
of diminishing the length of the sentence
for his second conviction. His efforts are
for nought. When a defendant pleads
guilty, all that is required is that he
understand have knowledge of the nature of
the offense in as plain a fashion as
possible, and that the court be satisfied
that the defendant understands and is
willing to act on his understanding. Id.
There is nothing in the record to indicate
that theses requirements have not been met.
Consequently, the Superior Court is hereby
reversed and the appellee's rape conviction
reinstated.
Mr. Chief Justice Nix files a
concurring opinion in which Mr. Justice
A.12
Papadakos joins.
Mr. Justice Lawson files a concurring
opinion.
Mr. Justice Zappala concurs in the
result.
A,13
SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF
PENNSYLVANIA,
No. 2 W.D. Appeal
Docket 1989
APPELLANT Appeal from the Order
of the Superior Court
entered May 19, 1988
at No. 874 Pittsburgh
1987 reversing the
Order of the Court of
)
)
)
)
)
Vs. )
)
APPELLEE ) Common Pleas of Elk
)
)
)
)
)
)
)
)
)
)
BERNARD D. RYAN,
County, Criminal
Division entered June
8, 1987 at No. 89 of
1978
379 Pa. Super. 664,
545 A.2d 388 (1988)
Submitted: September
25, 1989
CONCURRING OPINION
NIX, C. J. FILED: JANUARY 8, 1990
In this case the majority reaches the
correct result but for a wholly improper
reason. the majority opinion turns on the
use of a guilty plea, citing Commonwealth
v. Anthony, 504 Pa. 551, 475 A.2d 1303
A.14
(1984). I disagree with that analysis for
two reasons: first, the ineffective
assistance of counsel claim impacts upon
the validity of the guilty plea. The
failure of the trial court to ascertain the
actual condition of the allegedly ill
Commonwealth witness prevents a finding of
manifest necessity required to justify a
declaration of a mistrial and the avoidance
of a double jeopardy claim upon retrial.
Failure of counsel to reads the double
jeopardy claim as well as_ counsel's
acquiescence in a guilty plea under the
circumstances of the second trial clearly
constituted ineffective assistance of
counsel. Thus, our analysis may not rest
on the consequences of a guilty plea.
Second, under Commonwealth v. Lawson,
519 Pa. 504, 549 A.2d 107 (1988), a second
PCHA petition should be dismissed absent a
"strong prima facie showing. . . that a
miscarriage of justice may have occurred."
A.15
Lawson, 519 Pa. at 513, 549 A.2d at 112.
The abortion of a double jeopardy claim
does not in itself represent a "miscarriage
of justice." Such a claim is an
affirmative defense and may be waived.
Commonwealth v. Gilman, 485 Pa. 145, 401
A.2d 335 (1979); Commonwealth v. Peters,
473 Pa. 72, 373 A.2d 1055 (1977).
Ineffective assistance of counsel for
failure to plead double jeopardy could have
been, but was not, put forward in the first
PCHA petition. thus, the rule of Lawson
now applies.
Therefore, for the reasons’ stated
above, I concur in the result of reversing
the order of the Superior court and
reinstating the conviction for rape.
Mr. Justice Papadakos joins in this
concurring opinion.
A.16
SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF No. 2 W.D. Appeal
PENNSYLVANIA, Docket 1989
APPELLANT Appeal from the Order
of the Superior Court
vs. entered May 19, 1988
at No. 874 Pittsburgh
1987 reversing the
Order of the Court of
Common Pleas of Elk
County, Criminal
Division entered June
8, 1987 at No. 89 of
1978
BERNARD D. RYAN,
APPELLEE
379 Pa. Super. 664,
545 A.2d 388 (1988)
Submitted: September
25, 1989
CONCURRING OPINION
JUSTICE ROLF LARSEN FILED: JANUARY 8, 1990
me ee ee ee ee ee ee ee ee ee ee eee
While I agree with the majority that
the Superior Court must be reversed and
appellee's rape conviction reinstated, I do
so because I believe that appellee failed
to sustain his burden of demonstrating
sufficient reasons why a court’. should
A.17
entertain his second PCHA petition under
Commonwealth v. Lawson, 519 Pa. 504, 549
A.2d 107 (1988). Lawson held that "a
second or any subsequent post-conviction
request for relief will not be entertained
unless a strong prima facie showing is
offered to demonstrate that a miscarriage
of justice may have occurred." [J[qd. at 513,
549 A.2d at 112 (emphasis added).
Accordingly, the court of Common
Please of Elk County acted properly and
well within its discretion when it
summarily dismissed appellee's second PCHA
petition, and Superior court erred in
reversing the Court of Common Pleas and
remanding for an _ evidentiary hearing
concerning the effectiveness of prior
counsel.
A. 18
SUPERIOR COURT OF PENNSYLVANIA
PITTSBURGH DISTRICT
COMMONWEALTH OF
PENNSYLVANIA,
Vv. No. 874 Pittsburgh 1987
BERNARD D. RYAN,
)
)
)
)
)
APPELLEE )
)
)
ORDER
AND NOW, this 19th day of MAY, 1988, it is
ordered as follows:
Order reversed. Judgment of sentence
arrested and appellant discharged.
BY THE COURT
/s/ Eleanor R. Valecko
DEPUTY PROTHONOTARY
4,19
COMMONWEALTH OF ) IN THE SUPERIOR COURT
PENNSYLVANIA, ) OF PENNSYLVANIA
)
¥. ) No. 874 Pittsburgh 1987
)
BERNARD D. RYAN, )
)
APPELLEE )
)
Appeal from the PCHA June 8, 1987
in the Court of Common Please of Elk County
Criminal Division, No. 89 of 1978
Before: OLSZEWSKI, WATKINS and CERCONE, JJ.
MEMORANDUM: FILED: MAY 19, 1988
This is an appeal from the Order of
the Court of common Please of Elk County
dated June 8, 1987, dismissing appellant's
petition filed pursuant to the Post
Conviction Hearing Act (PCHA).1
The following facts are not in
dispute. Appellant was arrested in June,
1987 and charged with rape, aggravated
assault and indecent assault. the alleged
crimes occurred in Elk County. On
September 11, 1978, a jury was impaneled
and sworn to hear the trial of the case
A 20
against appellant. Trial was scheduled to
begin October 11, 1978. On October 10,
1978, the District Attorney notified the
Court through the court administrator that
an essential Commonwealth witness was ill
and would be unavailable to testify the
next day at trial. The Commonwealth then
requested a continuance or a postponement.
the record is silent as to what actually
occurred other than that on November 6&8,
1987, a second jury was selected and sworn,
with trial scheduled to commence on
November 15, 1978.2 However, on November
13, 1978, appellant entered a plea of
1 42 Pa.C.S.A. Sec. 9541 et seg.
2 Apparently neither the district attorney
nor appellant's counsel requested a hearing
or advised the Court of their respective
positions concerning the continuance of the
case or the dismissal of the jury.
Q 21
guilty to the charge of rape and the second
jury was dismissed. On the same day,
pursuant to an agreed upon plea bargain,
appellant was sentenced to one and one-half
(1-1/2) to three (3) years imprisonment.
no direct appeal was taken from the
judgment of sentence.3
The following entry of the plea,
appellant filed his first PCHA petition and
new counsel was appointed to amend
3 Ordinarily a party on appeal who seeks
to challenge a guilty plea must first have
filed a motion to withdraw the plea.
Pa.R.Crim.P., Rules 319-321, 42 Pa.C.S.A.
However, where as here, an appellant
attacks a plea of guilty on the basis that
trial counsel's ineffectiveness contributed
to the plea, the courts have permitted
review of the claim on the. merits.
Commonwealth v. Miller, 495 Pa. 177, 433
A.2d 1 (1981). in the case sub judice the
guilty plea colloquy transcript reveals
that appellant was not informed that he was
waiving his right to raise a constitutional
challenge on appeal nor was he informed
that the rules of procedure require a
timely challenge to his plea. Accordingly,
we will entertain the appeal on the merits.
A. 22
the petition and further represent
appellant in the proceedings. This
petition was dismissed after a hearing. A
panel of this court affirmed the PCHA
court's decision. The Supreme Court denied
appellant's petition for allowance of
appeal.
Appellant then filed a second PCHA
petition, pro se, in which he argued that
trial counsel was ineffective for failing
to move for dismissal of the case on double
jeopardy grounds and that PCHA counsel was
ineffective for failing to read trial
counsel's ineffectiveness as to this issue.
The petition was summarily dismissed.
Appellant filed a pro se appeal, prompting
a panel of this court to note that the
record before it was wholly inadequate as
to the reasons for the dismissal of the
first jury.
Therefore, this case was reversed and
remanded for an evidentiary hearing and
A. 23
determination of whether prior counsel were
ineffective in failing to raise the issue
of double jeopardy.
On remand, an evidentiary hearing was
conducted by the same judge who had
presided over this case in 1978, the
Honorable Paul B. Greiner, Senior Judge,
specially presiding. At the hearing,
testimony was taken from three individuals,
they being the original district attorney
on the case, the original defense counsel,
and the allegedly unavailable commonwealth
witness. Following the close of the
hearing, the court determined that
appellant's prior counsel were not
ineffective and dismissed the PCHA
petition. This appeal followed.
On appeal, appellant raises four
issues for our review. Appellant asserts
that he was denied the effective assistance
of counsel because all prior counsel failed
to (1) raise the issue of double jeopardy;
A- 24
(2) object to the lack of jurisdiction of
the court entertaining entry of the guilty
plea; (3) request a hearing or compel the
attendance of appellant at a critical stage
of the proceedings, that is, when the jury
was dismissed sua _ sponte; and, (4)
investigate and advise the appellant as to
the availability of an alleged essential
witness. Because of our disposition of
this case on the double jeopardy claim, we
need not address the remaining claims.
The trial judge may declare a mistrial
only for reasons of "manifest necessity".
See Pa.R.Crim.P., Rule 1118, 42 Pa. C.S.A.
In Commonwealth v. Dull, 257 Pa. Super.
192, 390 A.2d 777 (1978), the trial judge
failed to ascertain the actual condition of
a prosecution witness who had taken ill
during the course of the trial, before
declaring a mistrial. This court held
Sat, under the circumstances, the trial
court was not justified in declaring a
mistrial because of the witness' illness.
The Court stated:
In Commonwealth v. Strop, 244 Pa.
Super. 173, 366 A.2d 1243 (1976) [,]
we stated: -
only for reasons of _¥_ manifest
necessity"[,] Pa.R. Crim.P. 1118(b).
This "manifest necessity" test or
standard must be grounded upon a
consideration of the importance to the
defendant to be tried by the tribunal
first impanelled ... this standard has
been held to include attention to the
cause of public justice. The
“Government [has] the right to retry a
» i]
States v. Wilson, 420 U.S. 332, [344],
95 §.Cct. 1013, 43 L.Ed.2d 232 ...
(1975), citing United States v. Perez,
9 Wheat. (22 U.S.) 578, 580, 6 L.Ed.
165 ... (1824).
If the appropriate circumstances of
manifest necessity and interests of
justice do not exist, then the double
jeopardy clause of the Fifth Amendment
of the United States Constitution
prevents retrial ... This rule was
made applicable to the states through
the Fourteenth Amendment ... However,
"another trial is allowable where a
court sua sponte declares a mistrial
without the defendant's consent and
over his objection where ‘'manifest
necessity' justifies the declaration
of the mistrial" ... Id., at 179-80,
366 A.2d at 1251 (Citations omitted;
emphasis supplied.)
A. 26
2 &
So here: The trial judge had no
"definite diagnosis" of Mr. Hovanec's
(witness) condition. He therefore did
not have facts that justified
"subjecting appellant[s] to the
continuing ordeal of a pending trial."
At the least the judge should have
continued the case to ascertain nmr.
Hovanec's condition before determining
that a mistrial was necessary.
Commonwealth v. Dull, 257 Pa. Super. at __,
390 A.2d at 779-80. Likewise, in
Commonwealth _v. Ferguson, 446 Pa. 24,
A.2d (1971), the Pennsylvania Supreme
Court concluded that the trial court had
erred in granting a mistrial when a
Commonwealth witness allegedly took ill.
In that case, the district attorney
informed the court that the witness' wife
had called to inform him the witness had
subclinical pneumonia. The witness'
doctor, however, would not verify the
condition nor give a_ prognosis. In
determining that the declaration of a
mistrial was too drastic a remedy, the
A. 27 ~
Supreme Court stated:
[W]e do not believe that the facts in
the instant case justified the
granting of a mistrial at the time of
the district attorney's request. The
trial court could have ... grant[ed] a
continuance until there was a definite
diagnosis of {witness'}] condition.
the court could even have sent the
jury home early for the day until more
was known about [{witness'] health. If
he in fact did have pneumonia, then
the mistrial could have been granted
on the bills in which his testimony
was needed. But anything less than a
definite diagnosis, introduced with
more formality than merely’ the
introduction into evidence of the fact
of the telephone call of the
undoubtedly nervous wife of the
prosection witness, does not give the
trial court ample grounds for
subjecting appellant to the continuing
ordeal of a pending trial.
id. at 29-30, A.2d at.
As previously stated, in the case at
hand, no contemporaneous record was made
which would have reflected the evidence
presented, if any, the understanding of the
court or the parties, or whether appellant
had agreed to the grant of mistrial. Of
further concern to us is the fact that,
upon this court's remand for evidentiary
A.28
hearing on the issue of double jeopardy,
the Commonwealth was still unable to put
facts into the record which would show
"manifest necessity" had appellant's trial
counsel timely objected to the grant of
mistrial. It is significant to note that
at the remand hearing, the prosecuting
district attorney was unable to state that
he had ascertained the length of the
witness' disability nor did he request the
court to grant a continuance within the
term of court then sitting. Further, the
doctor witness himself was unable to recall
how long he had actually been laid up with
his illness in 1978. Finally, the district
attorney's testimony was not persuasive
that the unavailable witness was actually
an essential witness. The record reflects
that the victim in this case knew the
appellant on a social basis and had had an
intimate relationship with him in the past.
While the doctor may have added weight to
A. 29
her claim that appellant had assaulted her,
that evidence would merely have been
cumulative to the victim's available
testimony.
Accordingly, if the Commonwealth had
wished to show "manifests necessity" and to
persuade the trial court to engage in such
an extraordinary exercise of discretion, it
should have offered more _ substantial
evidence.
Order reversed. Judgement of Sentence
arrested and appellant discharged.4
Olszewski, J. files a Dissenting
Statement.
4 We note for the record that, in this
case, appellant has fully served the
sentence imposed upon him. The result of
our order will be merely to clear his
record of this conviction.
4.30
IN THE SUPERIOR COURT
OF PENNSYLVANIA
COMMONWEALTH OF )
PENNSYLVANIA, )
v. )
)
BERNARD D. RYAN, )
)
)
APPELLEE No. 874 Pittsburgh 1987
Appeal from the PCHA June 8, 1987
in the Court of Common Please of Elk County
Criminal Division, No. 89 of 1978
Before: OLSZEWSKI, WATKINS and CERCONE, JJ.
DISSENTING STATEMENT BY OLSZEWSKI, J.:
I respectfully dissent. I do not
believe that the trial court abused its
discretion in finding manifest necessity to
declare a mistrial. Therefore, I would
find that the PCHA court properly dismissed
appellant's challenge to prior counsel's
effectiveness for failing to raise the
issue of double jeopardy.
A.31
COMMONWEALTH OF
PENNSYLVANIA,
Plaintiff
vs.
BERNARD D. RYAN,
Defendant
IN THE COURT OF COMMON PLEAS
OF THE FIFTY-NINTH
JUDICIAL DISTRICT
* COUNTY BRANCH - ELK
x
*
*
* CRIMINAL
x
*
* No. 89 of 1978
MEMORANDUM OPINION
AND ORDER OF COURT
Defendant was arrested in June 1978
rape and related offenses. On
September 11, 1978, a jury was empaneled
and sworn with trial to commence October
1978. On October 10, 1978, the
District Attorney of Elk County, James A.
Commonwealth witness, Dr. Steven Chilian,
who performed the medical examination on
the alleged rape victim and whose testimony
was essential to the Commonwealth case, was
notified the Court that -
A. 32
, :
ill with phlebitis, and requested a
continuance or postponement. The Court
granted same without hearing and dismissed
the jury. The defense counsel was notified
and, as he testified at remand hearing
January 15, 1987, because of his long
standing professional relationship with the
District Attorney, he accepted the District
Attorney's advice as being true and correct
and did not request a hearing challenging
the illness of Dr. Chilian. A second jury
was empaneled and sworn on November 8,
1978, and trial was slated tc begin one
week later. Although trial counsel
admitted that he did not specifically
investigate the availability of Dr. Chilian
on September 11, 1978, and November 15,
1978, the District Attorney's voir dire on
November 8, 1978, represented that Dr.
Chilian would be a witness and again during
the guilty plea colloquy, November 13,
1978, the District Attorney, in presenting
A.33
the factual basis on which the Court could
accept the plea, he again stated that Dr.
Chilian would be a witness. Trial counsel
and the Court accepted the District
Attorney's statements on the record on both
occasions as being true and correct and had
no reason to doubt same.
The alleged crimes occurred in Elk
County, then and now together with Cameron
County comprises the Fifty-Ninth Judicial
District. the writer was then the
President Judge and only Judge for said
district, and to accommodate parties and
the Court, the plea was received while the
Judge was presiding in Emporium, the county
seat of Cameron founty, 30 miles’ from
Ridgway, the county seat of Elk County.
There was no specific waiver on the record
by the defendant of any alleged right to
have his plea entered in Elk County.
As a result of plea bargaining, the
defendant was sentenced to one and one-
A34
half to three years imprisonment, was
released on parole and subsequently tried
and convected in Warren County on a charge
of rape-related offenses. The defendant
now challenges the effectiveness of counsel
of the instant case because of the
consideration given to it as a prior
offense by the sentencing judge in the
subsequent Warren County case for which he
is now imprisoned.
Defendant subsequently filed his first
PCHA petition and new counsel was appointed
to amend the petition and further represent
defendant in the proceedings. This
petition was dismissed after hearing and a
panel of the Superior Court affirmed the
PCHA Court's decision. wea Vv
Ryan, Pa. Super., 495 A.2d 614 (1985). The
Supreme Court denied defendant's petition
for allowance of appeal. Defendant
subsequently filed a second PCHA petition,
pro se, which was summarily dismissed by
A.35
this Court. By Memorandum and Order dated
June 30, 1986, a Superior Court panel to
No. 00062 Pittsburgh 1986, dismissed the
first allegation of the pro se appeal
relative to alleged conflict of interest
but reversed and remanded the case to
determine if “trial and PCHA counsel were
ineffective for failing to raise the double
jeopardy claim," defendant having argued
that counsel should have moved _ for
dismissal because it was not "manifestly
necessary" to dismiss the first jury. In
addition to the issue of "manifest
necessity," defendant raises the issue of
whether trial counsel was ineffective for
permitting entry of the plea in Cameron
County when the information charged the
offenses occurred in Elk County. As
relates ti the claimed ineffectiveness of
counsel, this allegation is without merit.
Commonwealth of Pennsylvania v. William C.
Dilley, No. 306 Pittsburgh 1985 (Pa.
A. 36
Super.), the Superior Court adopted the
opinion of specially presiding Judge
Snyder, President Judge of Jefferson
County, in holding that no prejudice
existed to the defendant nor was
defendant's counsel ineffective in
permitting an entry of a guilty plea in
Jefferson County when the offense charge
occurred in Elk County. In Dilley the
facts are almost identical in that
Brookville, the county seat of Jefferson
County, is 36 miles from Ridgway, the
county seat of Elk County and to save at
least one-half day judicial time, the
parties agreed that defendant's plea be
entered before Juage Snyder in- the
Jefferson County Court House, Brookville.
We now address the fundamental issue
of ineffectiveness of counsel for failure
to raise the issue of double jeopardy
pursuant to the Order of Remand.
In addressing this issue, we give
A.37
great importance to testimony presented by
Dr. Chilian at the time of hearing on
January 1s, 1987. Dr. Chilian's testimony
proved that, based on his'- phlebitic
condition, he was not available for trial
on October 11, 1978, and that he_ so
informed District Attorney Meyer on October
10, 1978, and was not certain as to how
long this condition would require him to be
bedridden. We find that Dr. Chilian's
presence as the examining physician of the
victim, was necessary for the Commonwealth,
as represented during the jury selection
September 43, 1978, and thus his
unavailability for trial on October 11,
1978, constituted a "manifest necessity"
for continuance or postponement of the
trial on October 11, 1978, and dismissal of
the first jury.
It is well settled that a defendant
may be retried after an earlier proceeding
has terminated in a mistrial if there was
A.38
"manifest necessity" for the mistrial.
Illinois v. Sommerville, 410 U.S. 458, 93
S.Ct. 1066, 35 L.Ed. 425 (1973), as cited
in Commonwealth v. Robson, 461 Pa. 615, 337
A.2d 575 (1975), at page 576.
There is no doubt based on the
testimony of former District Attorney James
A. Meyer at hearing on January 15, 1987,
that the testimony of Dr. Chilian was
essential to the Commonwealth's case
against the defendant. Because of the
illness of the Commonwealth's essential
witness (Dr. Chilian), there was no method
by which the appellant's "valued right to
have his trial completed by a particular
tribunal," ite Ss Vv. , 400 U.S.
470, 487, 91 S.Ct. 547, 27 L.Ed.2d 543
(1971), could be reconciled with the public
interest in obtaining the adjudication of
guilt or innocence. See Robson, supra.
Unlike the illness of a Commonwealth
witness in Commonwealth v. Ferguson, 446
A,39
Pa. 24, 285 A.2d 189 (1971), wherein the
Court required more evidence as to a
medical diagnosis with respect to the ill
witness, in this case the witness who
called in ill was, in fact, a medical
physician and, as such, the present case is
thus distinguishable from Ferguson.
In United States ex rel. Gibson v.
Zigel, 479 F.2d 773 (3rd Cir. 1973), it was
held that “manifest necessity" was found
where a key prosecution witness became ill
during the trial and could not testify and
the double jeopardy clause did not preclude
defendant's retrial. The Court in Zigel,
at <¢79 #.2@ 773, #777, in queting Nr.
Justice Black in Wade v. Hunter, 336 U.S.
684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974
(1949), stated:
"A Defendant's valued right to
have his trial completed by a
particular tribunal must in some
instances be subordinated to the
public's interest in fair trials
designed to end in just
judgments."
A.40
Having found that "manifest necessity"
existed, we must determine whether the
double jeopardy issue, under all the
circumstances, was of such "arguable merit"
so as to render counsel ineffective for
failing to raise the same notwithstanding
the fact the claim would be denied based on
a finding of "manifest necessity."
The Superior Court of Pennsylvania in
W V. , 518 a.2d 819 (1986)
precisely sets forth the pertinent issues
in determining a claim of ineffectiveness,
as follows:
"In reviewing a claim of
ineffectiveness of counsel, we
must first determine whether the
Claim which counsel failed to
assert was of arguable merit....
Counsel will not be deemed
ineffective for failing to assert
a meritless claim.... If the
underlying issue is of arguable
merit, then a Court must
determine whether the course
chosen by counsel had a
reasonable basis calculated to
serve the best interest of the
client.... In order to warrant a
new trial, it must also be shown
that counsel's dereliction
prejudiced the outcome so as to
A. 41
deprive the accused of a fair
trial." (Underlining supplied).
In following the process utilized to
determine a claim of ineffectiveness as set
forth in Cope, supra., it is clear that the
ultimate determination is whether’ the
failure to raise a claim so prejudiced the
outcome as to deprive the accused of a fair
trial. Thus even assuming that arguable
merit may have existed in raising the
double jeopardy claim notwithstanding the
finding of "manifest necessity," we must
determine whether the failure to raise the
claim served to prejudice the outcome.
Having found that "manifest necessity"
existed for discharging the first jury, the
defendant was not’ prejudiced by his
counsel's failure to raise a claim at the
outset. The record indicates that the plea
as entered was a culmination of plea
negotiations wherein the defendant only
obtained his sentence of one and one-half
to three years for the charge of Rape, a
A, 42
felony of the first degree. See plea
colloquy of November 13, 1978.
It is not the prejudice to the
defendant that must be determined but
' rather whether the "outcome" was prejudiced
by any ineffectiveness on the part of
counsel. In Cove, 418 A.2d 819, at page
821, it is stated that:
"In order to warrant a new trial,
it must also be shown that
counsel's dereliction prejudiced
the outcome so as to deprive the
accused of 4 fair trial."
Emphasis supplied.
The Court concludes that "manifest
necessity" existed for dismissing the first
jury, and that the claim of ineffectiveness
of counsel is not of "arguable merit" and
that the course chosen by counsel had a
reasonable basis calculated to serve the
best interest of the client. Further, in
any alleged dereliction of counsel did not
prejudice the outcome so as to deprive the
accused of a fair trial.
A, 43
In accordance with the foregoing, we
make the following:
ORDER
AND NOW, to wit, this 8th of June,
1987, defendant's PCHA petition is
dismissed.
BY THE COURT:
/s/ Paul B. Greiner
Senior Judge
Special Presiding
AaA4
IN THE COURT OF COMMON PLEAS OF ELK COUNTY,
PENNSYLVANIA, FIFTY-NINTH JUDICIAL DISTRICT
COMMONWEALTH OF
PENNSYLVANIA
vs.
BERNARD D. RYAN,
DEFENDANT
ELK COUNTY
BRANCH
CRIMINAL DIV.
NO. 89 OF 1978
SUPPLEMENTAL
AMENDED POST
CONVICTION HEARING
ACT PETITION
CODE:
FILED ON BEHALF OF
DEFENDANT, BERNARD
D. RYAN
COUNSEL OF RECORD
FOR THIS PARTY:
KIM WM. RIESTER,
ESQUIRE
PA I.D. NO. 19920
SCOTT, VOGRIN &
RIESTER
FIRM NO. 571
1320 FRICK BLDG.
PITTSBURGH, PA
15219
412-261-0905
IN THE COURT OF COMMON PLEAS OF ELK COUNTY,
PENNSYLVANIA, FIFTY-NINTH JUDICIAL DISTRICT
COMMONWEALTH OF ELK COUNTY
PENNSYLVANIA BRANCH
vs.
CRIMINAL DIV.
BERNARD D. RYAN,
NO. 89 OF 1978
DEFENDANT
SUPPLEMENTAL AMENDED _ POST’._ CONVICT TION
HEARING ACT PETITION
TO THE HONORABLE, THE JUDGES OF SAID
COURT:
AND NOW, comes the Defendant, BERNARD
D. RYAN, through his attorney, Kim Wn.
Riester, Esquire, pursuant to the
Pennsylvania Post Conviction Hearing Act,
42 Pa. cC.S.A. §9541, et seq., and in
support thereof, states as follows:
Re On June 6, 1978, Defendant was
arrested and charged with Rape and other
related offenses.
2 That a jury was impaneled and
sworn on September 11, 1978, but was
dismissed without hearing, and without the
consent or notice to the Defendant.
A. 46
36 That the only reference in the
record as the reason for dismissing the
jury is the subsequent statement of trial
counsel that “we had fully intended on
trying the case one previous time and the
witness was ill. Since that time, we have
reached a plea bargain agreement" (see Plea
Hearing Transcript dated November 13, 1978,
page 3).
4. Without any further motions by
trial counsel or a_- request for an
investigation as to the veracity of the
assertions of the (a) illness of the
witness; (b) essentiality of the witness's
testimony or (c) prognosis of the illness
and/or the future availability of the
witness.
5. On November 8, 1978, Defendant
and trial counsel selected a second jury,
and trial was set for November 15, 1978.
6. On the November 13, 1978, the
Defendant entered a plea to the above-
Q, 47
captioned crimes in the Court of Common
Pleas of Cameron County.
7 « On November 13, 1978, Defendant
was sentenced to a period of one and one
half to three (1-1/2 to 3) years
incarceration.
8. Neither trial counsel nor PCHA
counsel objected to any of the
aforementioned matters.
9. The foregoing dismissal of the
jury, which is tantamount to a declaration
of a mistrial, sua sponte, without manifest
necessity, constitutes a violation of
double jeopardy clause of the Fifth
Amendment of the Constitution of the United
States of America and Article I, Section 10
of the Constitution of the Commonwealth of
Pennsylvania. Illinois v. Sommerville, 410
U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425
(1973); Gori v. United States, 367 U.S.
364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961);
United States v. Perez, 22 U.S. (9 Wheat)
A.48
eT
579 6 L.Ed.2d 165 (1824). See also
Commonwealth v. Robson, __ Pa. __, 337
A.2d 573 (1975), which (a) reviews those
decisional authorities which have found
facts constituting "manifest necessity" and
(b) found that the illness of a trial judge
was justifiable under the circumstances.
Contrast Commonwealth v. Brooks, 225 Pa.
Super. 247, 310 A.2d 338 (1973) dealing
with the illness of the _ prosecuting
attorney, Commonwealth v. Wideman, 453 Pa.
119, 306 A.2d 894 (1973), involving the
termination of trial by a visiting judge
due to the limitation on the period of his
assignment to the court where the case was
tried, and Commonwealth v. Fergusson, 446
Pa. 24, 285 A.2d 198 (1978).
10. The Defendant respectfully
submits that his constitutional right to
Effective Assistance of Counsel as
guaranteed by the Sixth Amendment of the
Constitution of the United States of
A 49
America and Article I, Section 10 of the
Constitution of the Commonwealth of
Pennsylvania, was violated.
WHEREFORE, the Defendant, Bernard D.
Ryan, respectfully requests your Honorable
Court to dismiss the above-referenced case
based upon a violation of his
constitutional rights to effective
assistance of counsel and/or a claim of
double jeopardy.
Respectfully submitted,
/s/ Kim Wm. Riester, Esq.
A. 50
gels n> = Gah hieiiilainaaeaead laid diaaad
IN THE COURT OF COMMON PLEAS OF ELK COUNTY,
PENNSYLVANIA, FIFTY-NINTH JUDICIAL DISTRICT
COMMONWEALTH OF ELK COUNTY
PENNSYLVANIA BRANCH
vs.
CRIMINAL DIV.
BERNARD D. RYAN,
NO. 89 OF 1978
DEFENDANT
PROOF OF SERVICE
I hereby certify that I am this 29th
day of October, 1986, serving the foregoing
Supplemental Amended Post Conviction
Hearing Act Petition upon the persons and
manner indicated below:
SERVICE BY FIRST CLASS MAIL
ADDRESSED AS FOLLOWS:
Hon. Paul B. Greiner, J.
Fifty-Ninth Judicial District
Elk County Court House
Ridgway, PA 15853
David A. Frey, Esq.
Office of Prothonotary
Elk County Court House
Ridgway, PA 15853
Vernon D. Roof, Esq.
District Attorneys Office
P. O. Box 448
Ridgway, PA 15853
A. 51
George N. Daghir
Office of Public Defender
of Elk County
P. O. Box 404
St. Marys, PA 15857
/s/ Kim Wm. Riester, Esq.
A, 52
SUPERIOR COURT OF PENNSYLVANIA
PITTSBURGH DISTRICT
COMMONWEALTH OF PENNSYLVANIA
vs.
NO. 62 PGH, 1986
BERNARD D. RYAN,
APPELLANT
ORDER
AND NOW, this 30th day of June, 1986,
it is ordered as follows:
Order reversed and case remanded for
proceedings consistent with this
memorandum. Jurisdiction
relinquished.
BY THE COURT:
/s/Eleanor R. Valecko
DEPUTY PROTHONOTARY
A.53
SUPERIOR COURT OF PENNSYLVANIA
PITTSBURGH DISTRICT
COMMONWEALTH OF PENNSYLVANIA
vs.
NO. 62 PGH, 1986
BERNARD D. RYAN,
APPELLANT
Appeal from the Order in the
Court of Common Pleas of
Elk County, Criminal,
No. 89 of 1978.
Before: JOHNSON, HOFFMAN and LIPEZ, JJ.
PER CURIAM: FILED: JUNE 30, 1986
Order reversed and case remanded for
proceedings consistent with this
memorandum. Jurisdiction relinquished.
A.54
SUPERIOR COURT OF PENNSYLVANIA
PITTSBURGH DISTRICT
COMMONWEALTH OF )
PENNSYLVANIA )
)
vs. )
) NO. 62 PGH, 1986
BERNARD D. RYAN,)
)
)
Appeal from the Order in the
Court of Common Pleas of
Elk County, Criminal,
No. 89 of 1978.
Before: JOHNSON, HOFFMAN and LIPEZ, JJ.
MEMORANDUM:
This is an appeal from an order
summarily dismissing defendant's second
Post Conviction Hearing Act (PCHA)
petition. Defendant was arrested in June,
1978, for rape and related offenses. In
September, 1978, a jury was empaneled and
sworn, and then dismissed. A second jury
was empaneled and sworn on November 8, 1978
and trial was slated to begin one week
later. Prior to trial, defendant entered a
plea of guilty to the charge of rape (this
was the result of ae plea _ bargain).
A.55
Defendant was sentenced to one and one-half
to three years imprisonment. Defendant
subsequently filed his first PCHA petition
and new counsel was appointed to amend the
petition and further represent defendant in
the proceedings. This petition was
dismissed after a hearing, and a panel of
this court affirmed the PCHA court's
decision. Commonwealth v. Ryan, Pa.
Super. , 495 A.2ad 614 (1985). The
Supreme Court denied defendant's petition
for allowance of appeal. Defendant
subsequently filed a second PCHA petition,
pro se, which was summarily dismissed. In
this pro se appeal, defendant alleges that:
(1) his counsel during the first PCHA
proceeding, George Daghir, in pressing the
Claim of trial counsel's ineffectiveness
was operating under a conflict of interest
because both counsel were members of the
Public Defender's Office; and (2) both
counsel were ineffective for failing to
A, 56
ma
raise a double jeopardy clain. For the
reasons discussed below, we reverse the
order of the PCHA court and remand the case
for a hearing.
The record discloses that on December
14, 1982, the court granted defendant's
motion for assignment of counsel to prepare
and file an amended PCHA petition and
appointed George N. Daghir, Esquire, as
"Special Elk County Public Defender to
represent the defendant." In his reply
brief, defendant grudgingly admits that Mr.
Daghir was not a member of the Elk County
Public Defender's Office. He asserts,
however, that the lower court assigned Mr.
Daghir "from time to time to ease the
caseload on single [sic] Public Defender of
that county." Defendant then refers to Mr.
Daghir as having been a "part time member"
of the Public Defender's Office. Finally,
he asserts that Mr. Daghir was appointed
full-time Public Defender of Elk County
A. 57
during his representation of defendant in
the PCHA proceedings.
Our search of the record reveals,
however, that Mr. Daghir represented the
defendant in two PCHA proceedings as
specially appointed defender, not as a
member of the Public Defender's Office.
(When Mr. Daghir petitioned the lower court
for counsel fees for having specially
represented the defendant, his work
included two PCHA proceedings and an
appellate brief. Furthermore, the court's
order directing the payment of counsel fees
noted that the petition was filed on behalf
of George Daghir, Esquire, of the law firm
of Daghir and Daghir.). Therefore, in
pressing a claim of ineffectiveness of
trial counsel (the public defender), Mr.
Daghir was not operating under a conflict
of interest since he was not a member of
the Public Defender's Office.
A. 58
Defendant next argues that trial
counsel was ineffective for failing to move
for dismissal of the case on double
jeopardy grounds and that PCHA counsel was
ineffective for failing to raise trial
counsel's ineffectiveness as to this issue.
Defendant bases the underlying double
jeopardy claim on the following events: In
September, 1978, a jury was empaneled and
sworn. The court subsequently dismissed
the jury. A second jury was empaneled and
sworn on November 8, 1978, and trial was
slated to begin one week later. Prior to
trial, defendant entered a guilty plea
pursuant to a plea bargain. Defendant now
argues that counsel should have moved for
dismissal because it was not "manifestly
necessary" to dismiss the first jury.
The only reference in the record as to
the reason for dismissing the jury is found
on page three of the guilty plea colloquy
where defendant's attorney noted: "We had
A. 59
fully intended on trying the case one
previous time and the witness was ill, and
since that time, we have reached a plea
bargain agreement." (N.T. 11/13/78, 3). In
its brief, the Commonwealth claims that the
first jury was dismissed due to the illness
of a key Commonwealth witness, Dr. Steven
Chilian, who performed the medical
examination on the alleged rape victim and
whose testimony, therefore, was essential
to the Commonwealth's case. But, as the
Commonwealth admits, this evidence is not
part of the record. This points to the
fact that since defendant's PCHA petition
was summarily dismissed, the record before
us is wholly inadequate as to the reasons
for the dismissal of the first jury.
Therefore, we are unable to determine
whether trial and PCHA counsel were
ineffective for failing to raise the double
jeopardy clain. Our only recourse is to
remand the case to the PCHA court for a
A.60
hearing on this issue. (The Commonwealth
implies that the entire case is moot since
defendant has already served his sentence
on the rape charge. But an identical
argument was recently rejected by this
court in Commonwealth v. Markley, __ Pa.
Super. __, 501 A.2d 1137 (1985).).
One final point is necessary.
Defendant filed a motion for
reconsideration of his PCHA petition which
was not acted upon. The motion asked the
court to reconsider its summary dismissal
of the petition. Our remand of the case to
the PCHA Court to decide the issues of
trial and PCHA counsel's ineffectiveness
renders this motion superfluous.
Order reversed and case remanded for
proceedings consistent with this
memorandum. Jurisdiction relinquished.
—r ee € Servi
I hereby certify that a true and
correct copy of the within Petition for
Writ of Certiorari to the Supreme Court of
the Commonwealth of Pennsylvania was served
this by U.S. mail, first class, postage
prepaid, upon Vernon D. Roof, Esquire,
Courthouse, P. 6. Box 448, Ridgway,
Pennsylvania 15853, this 19th day of
February, 1990. A
ESS TAIN
Kim’ Wm. Riester, Esquire*
Attorney for Petitioner
SCOTT, VOGRIN & RIESTER
1320 Frick Building
Pittsburgh, PA 15219
(412) 261-0905
* Counsel Of Record
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