Appeal from order of Court of Oyer and Terminer of Philadelphia County, Dec. T., 1964, No. 627, in case of Commonwealth of Pennsylvania v. Ernest Satchell.
Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.
Roger F. Cox and Michael J. Rotko, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.
Appellant is presently serving a life sentence imposed pursuant to a 1964 guilty plea to murder. After an evidentiary hearing during which appellant was represented by court appointed counsel, his first post-conviction petition was denied in April, 1967. No appeal was taken from this denial; rather, appellant filed a second petition which was denied in December, 1967 without a hearing. This appeal, raising two issues of first impression, was taken from that denial.
Initially, appellant contends that subsections (b) and (c) of § 4 of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-4(b) and (c) (Supp. 1967) are unconstitutional. They provide: "(b) For purposes of this act, an issue is waived if: (1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a
habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and (2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. (c) There is a rebuttable presumption that failure to appeal a ruling or raise an issue is a knowing and understanding failure."
The first prong of appellant's attack against the constitutionality of this provision is premised upon an argument that it permits the post-conviction court to infer a waiver where the record is silent. Cited to support this attack are cases such as Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884 (1962) and Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019 (1938) which do indeed hold that it is impermissible to infer from a silent record that an indigent accused has waived the assistance of counsel.*fn1 This argument suffers, however, from a failure to distinguish two distinct concepts both of which are usually treated under the rubric of "waiver." Carnley and Johnson are concerned with the standard applied when determining if a constitutional right, e.g., the assistance of counsel, has been waived. Section 4, on the other hand, focuses upon whether the opportunity to challenge an alleged constitutional deprivation is now foreclosed by a failure to assert that deprivation in earlier litigation. This is a rule of procedural finality, not one governing whether an accused has decided to forego a substantive constitutional right to which he would otherwise be entitled. Such a distinction has received explicit recognition in our cases. Discussing whether failure to object
to the admission of an allegedly coerced confession at trial precluded, under the doctrine of waiver, a collateral attack upon that confession, we said: "Waiver is here used not in the sense of whether the right itself was waived, a standard which is part of the constitutional right and thus a constitutional imperative for the states, but rather whether the opportunity to litigate an asserted denial of the right was waived by failure to do so in a prior proceeding." Commonwealth v. Snyder, 427 Pa. 83, 87 n.1, 233 A.2d 530, 533 n.1 (1967).
Subsection (b) thus does not even involve the question of whether a waiver can be inferred from a silent record. The waiver it is concerned with is based upon the post-conviction applicant's failure to raise the now claimed constitutional deprivation in a prior proceeding; and to the extent that a record is required, all that need be shown is a prior post-conviction proceeding conducted with the assistance of counsel. It is now well established that § 4's standard of waiver, i.e., whether the post-conviction applicant has deliberately bypassed state procedures available for litigation of his claim, is identical to that employed by the federal courts. Compare Commonwealth v. Cheeks, 429 Pa. 89, 97, 239 A.2d 793, 797 (1968) and Commonwealth v. Snyder, supra at 88-94, 233 A.2d at 533-36 with Henry v. Mississippi, 379 U.S. 443, 452, 85 S. Ct. 564, 570 (1965). Two issues are thus posed: (1) is the Post Conviction Hearing Act an available state procedure and (2) can a prisoner, who fails to raise an issue in a prior post-conviction proceeding during which he was represented by counsel, be deemed to have ...