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COMMONWEALTH v. LEARN (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
LEARN, APPELLANT



Appeal from order of Court of Common Pleas of Tioga County, No. 213 of 1973, in case of Commonwealth of Pennsylvania v. Terrance Drew Learn.

COUNSEL

Michael J. Dowd, and Dowd & Kocsis, for appellant.

Rudolph J. Van Der Hiel, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Price, J., joins in this opinion. Concurring Opinion by Spaeth, J. Hoffman and Price, JJ., join in this opinion.

Author: Cercone

[ 233 Pa. Super. Page 289]

This is an appeal from appellant's conviction of the crime of selling marijuana in which appellant attempts to raise three issues. The first two issues will not be considered on appeal because such issues were not raised in

[ 233 Pa. Super. Page 290]

    post-verdict motions.*fn1 Commonwealth v. Reid, 458 Pa. 357 (1974); Commonwealth v. Bittner, 441 Pa. 216, 221 (1971); Commonwealth v. Myers, 439 Pa. 381, 384-385 (1970), and cases cited therein.

The third issue raised by appellant is whether he was denied effective assistance of counsel.*fn2 Until recently it was unclear whether such issue would be considered on direct appeal.*fn3 The Pennsylvania Supreme Court has resolved this uncertainty in the case of Commonwealth v. Dancer, 460 Pa. 95 (1975) where it held that if a defendant is represented on direct appeal by an attorney other than his trial counsel he must raise his claim of ineffective assistance of counsel on direct appeal or such claim will be waived as to possible subsequent relief under the Post Conviction Hearing Act.*fn4 The Supreme Court further held in Commonwealth v. Twiggs, 460 Pa. 105 (1975), that if such issue cannot be resolved by the appellate court, due to an inadequate record, the

[ 233 Pa. Super. Page 291]

    case can then be remanded to the trial court for an evidentiary hearing. It should be noted that Dancer does not hold that ineffective assistance of counsel must be raised on direct appeal in every case. In fact, under several circumstances such issue can only be raised in a PCHA hearing.*fn5 Following the procedure set forth in Dancer and Twiggs, we will now consider on this direct appeal appellant's claim of ineffective assistance of counsel.

Appellant alleges that his trial counsel was ineffective because he failed to raise certain issues in post-verdict motions thereby precluding appellant from raising those issues on appeal. It is well settled that "[c]counsel is not obligated to raise every adverse ruling made during trial in his post-trial motions." Commonwealth v. Harrison, 228 Pa. Superior Ct. 42 (1974). While it is true counsel should raise in post-verdict motions any issue which poses a reasonable possibility of success on appeal, he is not required to raise issues which are obviously without merit. Therefore in order to consider the appellant's claim of ineffective assistance of counsel, we must look to the issues not raised in post-verdict motions to determine if they have merit. It should be noted that these are the very same issues which in the first paragraph of this opinion we said we would not consider on direct appeal. A lesson can be learned from this which could be useful to appellants who have failed to raise an issue in post-verdict motions. All such appellant need do in order to have such substantive issue considered by this court is simply raise the issue of ineffective assistance of counsel. The reason for such ...


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