HomeMy WebLinkAboutCP-21-CR-0691-2003
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
OSCAR W. SHOEMAKER
NO. CP-21-CRIMINAL 0691 - 2003
IN RE: OPINION PURSUANT TO Pa. RA.P. 1925
Guido, J., March
, 2006
On April 11, 2005 the defendant filed a timely petition under the Post Conviction
Relief Act1 alleging ineffectiveness of his trial counsel. On May 5, 2005 we appointed
counsel to represent him in connection with that petition. Additionally we granted him
thirty (30) days to file an amended petition.
We held hearings on July 8, 2005 and August 25,2005. At the conclusion of the
August 25, 2005 hearing we entered a ruling from the bench denying the requested relief.
We conducted an on the record colloquy explaining the reasons for our decision.2 We
further advised petitioner of his appellate rights and indicated that his counsel would
continue to represent him without charge in connection with any appeal.
On November 4,2006 petitioner's PCRA counsel filed a request to be allowed to
withdraw his appearance? Attached to the petition was a Turner/Finley letter.4 Since the
letter was written well beyond the thirty day appeal period, it was labeled "nunc pro
tunc." On November 7,2005 we granted counsel's request to withdraw. On December
29,2005 petitioner filed apro se "Notice of Appeal Nunc Pro Tunc".
1 42 Pa. C.S.A. 9541 et seq.
2 See Transcript of August 25,2005, Proceedings pp. 3 - 4 and 6 - 9.
3 The document was erroneously captioned "Petition for Reduction in Bail."
4 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1998) and Commonwealth v. Finley, 379 Pa.
Super. 390, 550 A.2d 213 (1988).
NO. CP-21-CRIMINAL 0691 - 2003
Petitioner filed a "Concise Statement of Matters Complained of on Appeal" in
which he raised four issues. The first issue involves our alleged error in failing to allow
him to call his physician as a witness at the PCRA hearing.5 He complained that his
original lawyer was ineffective for failing to call the physician at trial. According to
petitioner, his physician would have testified that he was physically incapable of
committing the offenses for which he was convicted.
The record clearly shows that petitioner was given ample opportunity to call his
doctor as a witness. Since petitioner could not remember the physician's name at the first
hearing, we continued it to give his PCRA counsel the opportunity to locate the witness.6
In the interim, counsel located and interviewed the physician. He declined to call him at
the second hearing because his testimony would not be beneficial to petitioner?
Petitioner has raised three other issues on appeal. However, since those issues
were not raised before us, we are not in a position to address them in this opinion. 8
DATE
Edward E. Guido, 1.
Jaime Keating, Esquire
For the Commonwealth
Dirk Berry, Esquire
F or the Defendant
:sld
5 See "Concise Statement of Matters Complained of on Appeal", paragraph 1.
6 Transcript of July 8, 2005, Proceedings, pp. 26 - 27.
7 Transcript of August 25, 2005, Proceedings, p. 3.
8 Pa. Rule of Appellate Procedure 1925 (a) requires us to "file of record at least a brief statement, in the
form of an opinion, . . . for the rulings or other matters complained of. . .." Since we did not address the
other matters complained of, there are no rulings for which we can give reasons.
2