No. 183 March Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Dauphin County, at Nos. 376 through 383, 1972.
Bruce D. Foreman and Philip D. Freedman, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 250 Pa. Super. Page 305]
Appellant is presently before the court pursuant to an appeal from the denial of his petition under the Post-Conviction Hearing Act.*fn1 His petition was denied without a hearing based on the lower court's determination that the Commonwealth's answer to the petition fully and accurately discussed the issues raised by appellant. However, this is not the first time that appellant appears before us. He filed a direct appeal following his convictions on four separate
[ 250 Pa. Super. Page 306]
charges of violating the Drug Device and Cosmetic Act*fn2 and two charges of criminal conspiracy.*fn3 These charges arose from appellant's illegal transactions involving the sale of heroin at various times during the month of October, 1971. Following a trial before a judge and jury, on February 3, 1972, appellant was convicted and subsequently sentenced to serve a term of imprisonment from 5 to 10 years on each charge of illegal sale of heroin and from 1 to 2 years on the two charges of conspiracy. The four sentences on the illegal sales were to run consecutively and the sentences on the conspiracy convictions were to run concurrent with those imposed for the illegal sales. In his direct appeal following conviction, appellant raised the issues of entrapment and excessive sentence. That appeal, indexed at No. 39, March Term 1973, resulted in a per curiam order dated November 8, 1973 affirming the judgment of sentence.
In the present appeal, appellant profers the argument that a Commonwealth witness was permitted to testify at length as to prior criminal activity engaged in by the appellant and the witness. He maintains that the witness was permitted to testify for some time before defense counsel made any objection. Included in his argument is the claim that since defense counsel did not object at the outset of the testimony and furthermore, since defense counsel did not raise the issue in post-verdict motions, appellant was denied effective assistance of counsel.
The first time appellant raises the issue of ineffective counsel is in his petition under the Post Conviction Hearing Act. It was not raised in the direct appeal from the sentence of the lower court due largely to the fact that the attorney who represented him in that appeal also represented him during the trial.
[ 250 Pa. Super. Page 307]
The Pennsylvania Supreme Court has held in recent decisions that the appellate courts can consider claims of trial counsel's ineffectiveness raised in P.C.H.A. proceedings. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975) and the cases cited therein. However, such consideration is only available if appellant has not waived his right to present the issue. "Our Post Conviction Hearing Act and the principles of judgment finality mandate that claims of ineffectiveness of counsel may only be raised in P.C.H.A. 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 . . . ." Dancer, supra, 460 Pa. at 100, 331 A.2d at 438. In the instant case appellant was represented in his initial appeal by his trial counsel. Following his unsuccessful appeal, appellant raised the ineffectiveness of that counsel as an issue in his P.C.H.A. petition. The substance of his argument was that his counsel was ineffective in that he failed to make a timely objection to the testimony of the Commonwealth's witness and furthermore, counsel did not raise the issue regarding the Commonwealth's witness' testimony in post-verdict motions.
It becomes necessary for us to review the record in order to determine whether or not trial counsel's action was such as to amount to a denial of appellant's constitutional right to counsel. Cf. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), ...