Appeal from the Order of the Court of Common Pleas of Montgomery County No. 153, January Term, 1974 and No. 521, January Term, 1974.
John P. Gregg, Assistant Public Defender, Norristown, for appellant.
Milton O. Moss, District Attorney, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Hoffman, Cercone and Van der Voort, JJ., concur in the result.
[ 249 Pa. Super. Page 257]
This is an appeal from an order denying relief under the Post Conviction Hearing Act.*fn1 On July 17, 1974, appellant was found guilty of sex crimes against his daughters, Debra Ann and Veronica. Appellant claims that his trial counsel was ineffective. The lower court declined to rule on this claim, holding that it had been waived.
Following sentencing, appellant filed his own direct appeal in this court. This was premature because appellant's trial counsel had not filed timely post-verdict motions. Accordingly, the lower court granted appellant leave to file such motions nunc pro tunc, and assigned new counsel (a Public Defender) to represent appellant. To enable the lower court to hear these motions, and by stipulation of counsel, this court then remanded the case on November 4, 1974. Post-trial counsel filed new motions on December 4; the lower court denied them on February 4, 1975. No further direct appeal was taken. Instead, on April 15 appellant filed a PCHA petition pro se, in which he raised for the first time the claim that trial counsel was ineffective.
[ 249 Pa. Super. Page 258]
The lower court reasoned that under Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), trial counsel's ineffectiveness "could have been raised . . . on direct appeal," 19 P.S. § 1180-4(b)(1); that appellant's failure to appeal from the lower court's order denying the nunc pro Page 258} tunc post-verdict motions raised a "rebuttable presumption that [his] failure to . . . raise [the] issue [was] a knowing and understanding failure," 19 P.S. § 1180-4(c); and that appellant had not overcome this presumption.*fn2
The difficulty with the lower court's decision is that the claim of ineffectiveness could not have been raised on direct appeal from the court's order denying the nunc pro tunc post-verdict motions. This is so because the motions did not raise the claim of ineffectiveness.
[I]neffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant. It follows then that when newly appointed post-trial counsel fails to assign the ineffectiveness of trial counsel as a ground for post-trial relief, the issue of trial counsel's ineffectiveness is not properly preserved for appellate review.
Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977).
Here, the order denying the motions was filed on February 4, 1975, which was eight days after Dancer was filed, on January 27. Under Dancer, a claim of ineffectiveness must be raised on direct appeal; but under Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), no claim may be raised on direct appeal unless it was first raised in post-verdict motions.
This is not to fault post-trial counsel for not raising the claim of ineffectiveness in the nunc pro tunc post-verdict motions. The motions were filed on December 4, 1974, which was about two months before Dancer ; and before
[ 249 Pa. Super. Page 259]
counsel, they could be raised on appeal only under the guise of a claim of ineffective counsel. Thus we may infer from post-trial counsel's "difficulty [in] finding any trial errors" that he was not aware that it was now possible -- indeed, to preserve the claim, it was necessary -- to argue ineffectiveness of counsel on direct appeal. This inference is borne out by post-trial counsel's testimony at the PCHA hearing. Asked under what circumstances ineffectiveness of counsel had to be raised on direct appeal rather than by PCHA, he answered:
N.T. PCHA at 49 (emphasis supplied).
In the meantime, appellant was advised by "certain paralegal assistants at Graterford" (Appellant's Brief at 2; see also N.T. PCHA at 23, 30) to raise the ineffectiveness claim by a PCHA petition, which he did. A Public Defender was appointed to represent him on the petition. At this stage, the proper procedure would have been for PCHA counsel to do what post-trial counsel should have done, i. e., ask leave to file post-verdict motions nunc pro tunc in order to preserve the ineffectiveness claim, and to reinstate appellant's appeal. He did not do this. Nor did he attempt to preserve the claim by alleging in an amended PCHA petition that post-trial counsel had been ineffective. (It is not surprising that PCHA counsel did not allege this, since he was from the same office as post-trial counsel. We have remarked before that ...