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COMMONWEALTH PENNSYLVANIA v. JACK DONALD FOX (01/26/78)

decided: January 26, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JACK DONALD FOX, APPELLANT



COUNSEL

Joseph W. Mullin, Public Defender, for appellant.

Stewart L. Kurtz, Huntingdon, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.

Author: Roberts

[ 476 Pa. Page 477]

OPINION OF THE COURT

In this appeal from the order of the Post Conviction Hearing Court*fn1 dismissing appellant's post-conviction petition, appellant claims: (1) he was denied the right to a speedy trial; (2) the trial court improperly allowed admission of testimony of a witness given at a previous hearing; (3) the Commonwealth unconstitutionally used perjured testimony; (4) he was illegally arrested; (5) he was not given a copy of the criminal complaint at his preliminary arraignment; (6) he was not afforded a preliminary hearing until eleven days after preliminary arraignment; and (7) trial counsel was ineffective in that appellant "was not consulted with, nor informed as to what was going on, during the course of the trial and trial counsel did not comply with appellant's requests in regard to the production of certain evidence."*fn2

Appellant did not raise any of these claims on direct appeal, Commonwealth v. Fox, 445 Pa. 76, 282 A.2d 341 (1971), though the first six claims were clearly cognizable on

[ 476 Pa. Page 478]

    direct appeal. Appellant's failure to raise them constitutes a waiver under section 4 of the Post Conviction Hearing Act absent a showing of "extraordinary circumstances" justifying the failure. Act of January 25, 1966, supra, § 4, 19 P.S. § 1180-4(b). Appellant has not alleged the existence of any such extraordinary circumstances and the first six claims are therefore waived. Commonwealth v. Tunnell, 463 Pa. 462, 464, 345 A.2d 611, 612 (1975); Commonwealth v. Via, 455 Pa. 373, 376, 316 A.2d 895, 897 (1974).

Appellant's claim that trial counsel was ineffective, however, is not waived. The failure to raise on direct appeal a claim of ineffectiveness of trial counsel does not constitute a waiver where an appellant is represented on appeal by his trial counsel. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); cf. Commonwealth v. Via, supra (failure to raise claim of ineffectiveness in prior counseled PCHA petition does not constitute waiver where counsel for first PCHA proceeding was a member of the same office as trial counsel). Here, appellant was represented at trial and on direct appeal by his present PCHA counsel, a member of the Huntingdon Public Defender's Office, and by the late Edward L. Willard, a Centre County Public Defender. Accordingly, appellant's claim of trial counsel's ineffectiveness is not waived for failure to raise it on direct appeal.

Even though the claim of ineffectiveness is therefore a proper issue on collateral attack, we cannot here proceed to determine whether the PCHA court properly denied relief on this claim. This Court has previously held that it is unrealistic to expect trial counsel to argue his own ineffectiveness, Commonwealth v. Dancer, supra, 460 Pa. at 100, 331 A.2d at 438. We have also held that a PCHA petitioner, represented by court-appointed counsel and alleging ineffective assistance of trial counsel, may not be represented by an attorney from the office with which the allegedly ineffective attorney was associated. Commonwealth v. Sherard, 477 Pa. , 384 A.2d 234 (1977); Commonwealth v. Wright,

[ 476 Pa. Page 479473]

Pa. 398, 374 A.2d 1273 (1977); Commonwealth v. Via, supra. In neither case can it be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled. This same consideration is applicable where, as here, PCHA counsel is alleging the ineffectiveness of his co-counsel at trial. We cannot assume that appellant's PCHA counsel adequately advised appellant of his own inadequacies as trial ...


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