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COMMONWEALTH v. SIMON (12/29/71)

decided: December 29, 1971.

COMMONWEALTH
v.
SIMON, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1961, Nos. 527 and 528, in case of Commonwealth of Pennsylvania v. Thelma Simon.

COUNSEL

Thomas C. Carroll and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

J. Bruce McKissock and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy dissents. Dissenting Opinion by Mr. Justice Jones.

Author: Roberts

[ 446 Pa. Page 216]

Appellant Thelma Simon, who was convicted of first degree murder after trial by jury, sought post-conviction relief on the ground that her trial counsel had been embroiled in an impermissible conflict of interest. Appellant's petition for post-conviction relief was dismissed after a hearing, and this appeal followed.*fn1 We

[ 446 Pa. Page 217]

    find that appellant has waived her conflict of interest claim, and affirm the dismissal of her petition for post-conviction relief.

It is alleged by Simon that her trial counsel, in agreeing to a contingent fee arrangement, was involved in a conflict of interest. Appellant, who was accused of murdering her husband, had been named as a beneficiary on her husband's life insurance policy. Since Simon had limited financial resources, her trial counsel agreed that a portion of his fee would be paid out of the proceeds of the insurance policy, despite the fact that if appellant were convicted of the murder of her husband, she would not be entitled to the proceeds of her husband's policy. See, e.g., Kravitz Estate, 418 Pa. 319, 211 A.2d 443 (1965). Appellant contends that by entering into such an arrangement her trial counsel was effectively precluded from seeking compromise verdicts short of murder.

However, Section 3(d) of the Post Conviction Hearing Act, provides that for a petitioner to be eligible for relief it must be demonstrated "[t]hat the error resulting in his conviction and sentence has not been finally litigated or waived." Section 4 declares in turn that an issue is waived if the petitioner knowingly and understandingly failed to raise it in a prior appeal, and he is unable to either (a) prove the existence of "extraordinary circumstances" or (b) rebut the statutory

[ 446 Pa. Page 218]

    presumption that "a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."

In the instant case, appellant prosecuted a counseled direct appeal from the judgment of sentence in 1968, in which she failed to raise the conflict of interest issue presently asserted. See Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968). At that time she was represented by new counsel, so there can be no claim that her trial counsel's alleged conflict of interest also tainted her direct appeal. In this present Post Conviction Hearing Act proceeding, there is no showing of any extraordinary circumstances to excuse this failure to raise the issue or any ...


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