Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1972, Nos. 1088 to 1091, inclusive, in case of Commonwealth of Pennsylvania v. Harold Jackson.
Joan Saltzman and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.
Howell K. Rosenberg, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Van der Voort, J., concurs in the result. Spaeth, J., joins in both the Majority Opinion by Jacobs, J., and in the Concurring Opinion by Hoffman, J. Concurring Opinion by Hoffman, J.
[ 239 Pa. Super. Page 125]
On October 17, 1972, the appellant was found guilty of aggravated robbery, burglary, pointing a firearm and carrying a concealed deadly weapon. On November 1, 1972, thirteen days after the verdicts of guilty were returned, appellant filed motions for a New Trial and In Arrest of Judgment. These motions were argued on December 5, 1972, and held under advisement. On August 10, 1973, these motions were denied and sentence was imposed.*fn1 A counseled*fn2 direct appeal from the judgment of sentence was taken to this Court, at which time, appellant raised ineffective assistance of counsel as the only ground for relief, and briefed three theories in support thereof. The three theories were that appellant's trial counsel was ineffective: (1) he failed to file a pretrial motion to suppress evidence seized pursuant to an
[ 239 Pa. Super. Page 126]
arrest and search and seizure; (2) he failed to file a pretrial motion to suppress an out-of-court identification; and (3) he failed to timely file post-trial motions. We affirmed the judgment of sentence per curiam without opinion. Commonwealth v. Jackson, 228 Pa. Superior Ct. 886, 322 A.2d 702 (1974). Appellant did not petition our Supreme Court for allowance of appeal from that decision.
On June 3, 1974, appellant filed a petition for relief under the Post Conviction Hearing Act.*fn3 An evidentiary hearing was scheduled and an attorney from the Public Defender's Office was appointed to represent the appellant. Appellant raised, in writing and by oral amendment, the following grounds for relief: (1) ineffective assistance of counsel;*fn4 (2) lack of intelligent waiver of conflict of interest between the appellant and his co-defendant; (3) suppression of evidence by the Commonwealth by failing to produce an eyewitness to the robbery; and (4) introduction of evidence as a result of illegal arrest, search and lineup procedures. After an evidentiary hearing, at which the appellant's trial counsel testified as a Commonwealth witness, the lower court denied the petition for post-conviction relief and the instant appeal followed.
The facts surrounding the episode out of which the charges against the appellant arose will be discussed infra insofar as they relate to specific issues considered. Instantly, the appellant has briefed sixteen*fn5 arguments
[ 239 Pa. Super. Page 127]
in support of his request for a new trial, or, in the alternative, in support of his right to file post-trial motions nunc pro tunc. Initially, we must consider which arguments are properly cognizable in the instant appeal.
Section 3(d) of the Post Conviction Hearing Act requires that for one to be eligible for relief one must prove "[t]hat the error resulting in his conviction and sentence has not been finally litigated or waived." Act of
[ 239 Pa. Super. Page 128]
January 25, 1966, P.L. (1965) 1580, § 3(d), 19 P.S. § 1180-3(d) (Supp. 1975-76). Section 4(a)(2) provides, inter alia, that "[f]or the purpose of this act, an issue is finally litigated if: . . . [t]he Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals . . . ." Act of January 25, 1966, P.L. (1965) 1580, § 4(a)(2), 19 P.S. § 1180-4(a)(2) (Supp. 1975-76).
The Commonwealth first urges that the ground for relief, ineffective assistance of counsel, was, pursuant to the pertinent provisions of the Post Conviction Hearing Act, supra, "finally litigated" by this Court's per curiam affirmance, Commonwealth v. Jackson, supra, of the judgment of sentence.*fn6 The appellant contends that the
[ 239 Pa. Super. Page 129]
per curiam affirmance did not constitute a decision on the merits, and consequently the claim of ineffective assistance of counsel was not "finally litigated." We are convinced that the appellant's contention has merit and that the appellant's ground for relief, ineffective assistance of counsel, was not "finally litigated" prior to the evidentiary hearing held pursuant to the provisions of the Post Conviction Hearing Act.
The initial direct appeal from the judgment of sentence was taken prior to the decision in Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). In that decision, our Supreme Court held: "Our Post Conviction Hearing Act and the principles of judgment finality mandate that claims of ineffectiveness of counsel may only be raised in PCHA proceedings 1) where petitioner is represented on appeal by his trial counsel, for it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness, 2) where the petitioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record, 3) where the petitioner is able to prove the existence of other 'extraordinary circumstances' justifying his failure to raise the issue, Post Conviction Hearing Act § 4 (b)(2), 19 P.S. § 1180-4(b)(2) (Supp. 1974) or 4) where the petitioner rebuts the presumption of 'knowing and understanding failure.' Post Conviction Hearing Act § 4(c), 19 P.S. § 1180-4(c) (Supp. 1974)." Id. at 100-101, 331 A.2d at 438 (footnote omitted).*fn7
Prior to Commonwealth v. Dancer, supra, although the Post Conviction Hearing Act was clear in its mandate that a decision on the merits of an issue by this
[ 239 Pa. Super. Page 130]
Court would constitute a "final litigation" barring subsequent Post Conviction Hearing Act relief, the decisional law relating to ineffective assistance of counsel challenges was not as clear. Commonwealth v. Harrison, 228 Pa. Superior Ct. 42, 44, 323 A.2d 848, 849 (1974) best summarizes the posture of our Court prior to Commonwealth v. Dancer, supra: " Ordinarily this Court will not decide a claim of ineffectual assistance of counsel on direct appeal. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, where, as here, counsel on appeal is other than counsel at trial and the question of proper representation arguably appears on the record, public ...