Edward G. Rendell, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result. Pomeroy, J., dissents.
Appellant, Harry Mabie, was arrested on March 1, 1974, in connection with the stabbing death of Lawrence DiGiacinto. Shortly thereafter, the court appointed counsel to represent the accused. On March 20, 1974, a preliminary hearing was held and subsequently Mabie was indicted on charges of murder, aggravated assault, possessing a prohibited offensive weapon and possessing an instrument of crime. On April 16, 1974, Mabie and his counsel appeared in court and specifically waived any
right he may have had to file a motion to suppress a statement which Mabie made to police at the time of his arrest. On April 23, 1974, following plea negotiations between his counsel and the district attorney, Mabie, on the advice of counsel, entered a plea of guilty to murder generally. In return, the Commonwealth nolle prossed the aggravated assault and weapons charges, certified that the charge of murder rose no higher than murder of the second degree and recommended a sentence of from five to fifteen years imprisonment. After a colloquy, the guilty plea was accepted and at a degree of guilt hearing which followed, Mabie was adjudged guilty of murder of the second degree. A sentence of from five to fifteen years imprisonment was imposed. No post verdict motions were filed and no appeal was taken from the judgment of sentence.
On September 12, 1974, Mabie filed a pro se petition requesting relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. [Supp.1975-76]. On October 8, 1974, the petition was denied without a hearing. An appeal was filed in this Court and on May 1, 1975, pursuant to an agreement of counsel, we remanded the case to the lower court for the filing of an amended PCHA petition and a hearing thereon.
The amended petition was filed alleging as grounds for relief that Mabie's plea of guilty was not voluntarily entered and that he was denied the effective assistance of trial counsel. A hearing was held on June 25, 1975 and relief was denied. This appeal, which presents the single issue of whether Mabie received effective assistance of counsel before entering his plea, followed.
Initially, the Commonwealth contends that the issue has been waived since the question of effective assistance of trial counsel could have been raised on direct appeal and no such appeal was taken. Commonwealth v. Page 469} Tunnell, 463 Pa. 462, 345 A.2d 611 (1975); Commonwealth v. Blair, 463 Pa. 383, 344 A.2d 884 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). See also, PCHA, supra, §§ 3(d) and 4(b), 19 P.S. § 1180-3(d) and § 1180-4(b); Commonwealth v. Hines, 461 Pa. 271, 336 A.2d 280 (1975). While the issue was cognizable on direct appeal and Mabie's failure to so enter it raises, at least, a rebuttable presumption that his failure was knowing and understanding, and, therefore, the issue has been waived, we believe certain extraordinary circumstances present in this case have preserved this issue for our review at this time. In Commonwealth v. Dancer, supra, this Court, speaking through Mr. Justice Roberts said, "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, . . ." 460 Pa. at 100, 331 A.2d at 438. Here, since trial counsel, who Mabie contends was ineffective, would have been required to file post verdict motions and a direct appeal on the issue of his own ineffectiveness were such procedures initiated, it is similarly ...