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COMMONWEALTH PENNSYLVANIA v. EMANUEL GARDNER (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
EMANUEL GARDNER, APPELLANT



No. 173 October Term, 1976, Appeal from the Order dated September 9, 1975, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 962, 963, 966 and 968 of May Term, 1970.

COUNSEL

Jack M. Myers, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 250 Pa. Super. Page 90]

This is an appeal from the lower court's denial of a petition for relief under the Post Conviction Hearing Act.*fn1 Following a jury trial on January 25, and 26, 1971, appellant was found guilty of two counts of aggravated robbery. On January 27 and 28, 1971, appellant was tried before the same judge and a separate jury on charges stemming from a different occurrence and convicted of burglary and aggravated robbery. Motions for a new trial and in arrest of judgment were filed and subsequently denied. A concurrent sentence of ten to twenty years imprisonment was imposed on each conviction. Appellant took a direct, counseled appeal to this court, which on May 30, 1972, affirmed the judgments of sentence. Commonwealth v. Gardner, 221 Pa. Super. 775, 291 A.2d 789 (1972). The Supreme Court of Pennsylvania denied allocatur on November 9, 1972.

The contentions advanced in this appeal are: (1) that the motions court erred in denying appellant's request to dismiss defense counsel and appoint new counsel prior to trial; and (2) that defense counsel's belief in appellant's guilt made him unable to represent appellant effectively at trial. The lower court, following a hearing held on May 20 and June 13, 1975, which featured, inter alia, the testimony of appellant and his trial counsel, found that appellant's contentions could be deemed waived. Proceeding to the merits, however, it also ascertained that there was no abuse of discretion in the denial of appellant's motion to dismiss his trial

[ 250 Pa. Super. Page 91]

    counsel and that trial counsel's representation was not ineffective. We affirm the lower court's denial of relief.

Appellant was represented by counsel other than trial counsel on his direct appeal to this court.

[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).

Several instances of alleged ineffective assistance were treated by the lower court in its post-trial opinion. As the Supreme Court of Pennsylvania declined review of this court's decision, any issues raised on direct appeal*fn2 were finally litigated, Commonwealth v. Beecham, 450 Pa. 197, 299 A.2d 651 (1973); 19 P.S. § 1180-4(a)(2) and (3), and can afford no basis for relief. 19 P.S. § 1180-3(d). As to those claims of alleged ineffectiveness asserted herein which were not raised on direct appeal, the following analysis is applicable. "There is a rebuttable presumption that a failure . . . to raise an issue is a knowing and understanding failure." 19 P.S. § 1180-4(c). Appellant has not alleged facts "to prove the existence of extraordinary circumstances to justify his failure to raise the issue[s]." 19 P.S. § ...


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