Appeal from order of Court of Common Pleas of Lebanon County, No. 303 of 1970, in case of Commonwealth of Pennsylvania v. John Richard Krall.
Keith L. Kilgore, and Spitler, Rowe and Kilgore, for appellant.
David J. Brightbill, Assistant District Attorney, and George E. Christianson, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Concurring Opinion by Hoffman, J. Spaeth, J., joins in this concurring opinion.
[ 239 Pa. Super. Page 483]
Concurring Opinion by Hoffman, J.:
I concur in the result reached by the Majority because I believe that the Majority's reasoning is technically unassailable. At the same time, however, I believe that the result is unjust and, therefore, raises a question whether our Supreme Court's decision in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), that abrogated the doctrine of basic and fundamental error in Pennsylvania, must be applied when to do so produces an unjust result.
In the normal course of the judicial process, an appellate court often announces a new rule that is applied only to the litigants before the court and to future litigants. See, e.g., Johnson v. New Jersey, 384 U.S. 719 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966); Linkletter v. Walker, 381 U.S. 618 (1965). Other criminal litigants, although their convictions were based, for example, upon evidence seized by newly condemned practices, may not receive the benefits of expanded civil rights. Various rationales have been advanced for such a result, see Johnson v. New Jersey, supra, but no court has found that the failure to give application to a particular rule is necessarily a violation of due process.
Appellant does not argue that Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), must be given retroactive application. Rather, he challenges his conviction in a Post Conviction Hearing Act*fn1 petition under the rubric of ineffective assistance of counsel. On this point, I agree with the Majority that appellant's counsel was not ineffective for ...