Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James A. Shellenberger, Philadelphia, for appellant.
John W. Packel, Chief, Appeals Div., Jonathan Miller, Asst. Defender, Judith Savitz, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
Appellee was tried before the late Judge Thomas M. Reed sitting without a jury for the gang related killing of Alonzo Booker. After a pre-trial motion to suppress oral and written statements was denied by Judge Reed, Jerry Logan was tried and found guilty of murder of the second degree on May 28, 1970.*fn1 Post-verdict motions were filed and denied. Appellee was subsequently sentenced to imprisonment for not less than four years and no more than twenty years. A direct appeal followed in which the only issue raised was the sufficiency of the evidence to sustain the conviction. This Court affirmed the judgment of sentence in a per curiam opinion citing Commonwealth v. Pierce, 437 Pa. 266, 263 A.2d 350 (1970). See Commonwealth v. Logan, 447 Pa. 581, 287 A.2d 902 (1972).
In July 1974, Logan filed a pro se Petition for Post-Conviction Relief. See, Act of 1966, January 25, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. New counsel was appointed and several evidentiary hearings were held. On June 27, 1975, the hearing court vacated appellee's judgment of sentence and awarded him a new trial. The Commonwealth has filed this appeal. After our review of this record, we believe the hearing court's
order must be vacated and the cause remanded for further proceedings below.
The hearing judge concluded that relief should be granted under the Post-Conviction Hearing Act, supra, after a determination that the arrest of appellee was made without probable cause*fn2 and that the incriminatory statements, elicited from appellee during the custodial interrogation which followed that arrest, were tainted by the illegality of the arrest. As an alternative basis for granting relief the court also determined that the incriminatory statements were obtained in violation of Pennsylvania Rule of Criminal Procedure 130 [formerly 118]. See Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). We are of the view that the learned court below fell into error by failing to recognize that these claims were waived under Section 4(b) of the Act, supra., 19 P.S. § 1180-4(b).
The record establishes that although a pre-trial motion to suppress these statements was filed, the basis relied upon to support the motion was that the statements were involuntarily elicited by psychological and physical coercion. Further, the instant objections were also not raised at trial, or during post-trial motions or before this Court on direct appeal. See generally, Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786, (filed July 1976); Commonwealth v. Gilmore, 464 Pa. 464, 466, 347 A.2d 305, 307 (1975); Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
The waiver provision of Section 4 does permit petitioner to justify his failure to raise an issue provided that he is able to establish the existence of extraordinary circumstances. Mr. Logan contends that his former counsel improperly
failed to raise the claims under Pa.R.Crim.P. 130 and the absence of probable cause.*fn3 In addition to the allegation that former counsel improperly failed to raise these two issues, appellee has asserted numerous other instances of their incompetence. "Since an issue may not be finally litigated or waived in a proceeding in which the defendant has been denied effective assistance of counsel", Commonwealth v. Musser, 463 Pa. 85, 87, 343 A.2d 354, 354-355 (1975) (and cases cited therein), and in view of the fact the allegation of ineffective assistance of former counsel extends both to their representation at trial and on direct appeal, we now must turn to this claim (ineffective assistance of counsel) to determine whether there was a valid waiver under Section 4 and also to determine whether relief should have been granted on the independent ground of ineffective assistance of counsel.
In the brief filed in this Court, appellee challenges the hearing court's rejection of his claim of ineffective assistance of counsel.*fn4 In support of the allegation of ineffective assistance of counsel, appellee here contends that trial counsel erred in failing to appeal the ruling of the suppression judge on the voluntariness of the incriminatory statement, and in failing to raise several additional challenges to the admissibility of Logan's
confession, to wit, that there was a delay in giving him his Miranda warnings, that Logan, a juvenile, incriminated himself without benefit of advice from parent or counsel, that there was a period of unnecessary delay prior to arraignment, and that Logan's statement was tainted as a product of his illegal arrest. Additionally, it is asserted that counsel was incompetent by failing to order the transcription of certain suppression hearing notes and failing to challenge the competency of Judge Reed in passing upon the motion to suppress. Our independent review of the record satisfies us that Logan received prudent representation and a fair trial. Commonwealth v. Hill, 450 Pa. 477, 480, 301 A.2d 587, 590 (1973); Commonwealth v. Ganss, 440 Pa. 602, 606, 271 A.2d 224, 226 (1970).
The first basis offered to support the claim of ineffective assistance of counsel is that former counsel improperly failed to appeal the suppression court's finding that the confession was voluntary. At the post-conviction hearings former counsel testified that because their client's claim of involuntariness was purely a credibility determination to be made by the suppression judge, and the evidence contradicting Logan's story was "just overwhelming", they decided not to pursue the matters on appeal. In Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975), a pre-trial suppression hearing was held for the defendant and the motion to suppress was denied. Counsel argued to the suppression judge that in view of the conflicting versions, "it is a matter of credibility". Commonwealth v. Nole, ...