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COMMONWEALTH PENNSYLVANIA v. THOMAS ROACH (07/14/78)

decided: July 14, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS ROACH, APPELLANT



No. 88 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Denying Appellant's Petition for Post-Conviction Relief as of No. 1084, March Session, 1968.

COUNSEL

Allen N. Abrams, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., concurs in the result.

Author: Roberts

[ 479 Pa. Page 530]

OPINION OF THE COURT

In 1969, a jury convicted appellant of murder of the first degree for killing the manager of a bar while committing a robbery. The court denied post-verdict motions. This Court affirmed judgment of sentence. Commonwealth v. Roach, 444 Pa. 368, 282 A.2d 382 (1971). In 1975, appellant, represented by new counsel, filed a petition under the Post-Conviction Hearing Act,*fn1 alleging ineffectiveness of trial counsel. The PCHA court denied the petition. We affirm.*fn2

Appellant did not raise ineffectiveness of trial counsel on direct appeal. He has not waived that issue, however, because he was represented on direct appeal by his trial counsel. "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. Fox, 476 Pa. 475, 478, 383 A.2d 199, 200 (1978); accord, Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Counsel will not be held ineffective unless no reasonable basis exists for his course of action. Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). It is reasonable for counsel to decline to file motions or enter

[ 479 Pa. Page 531]

    objections which are without merit, Commonwealth v. Davis, 470 Pa. 193, 368 A.2d 260 (1977), reasonably certain to fail, Commonwealth v. White, supra, or unsupported by law existing at the time of the proceedings. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971).

"The test for competency 'is not whether other alternatives were more reasonable, implying a hindsight evaluation of the record,' but whether counsel's assessment of appellant's case and his advice were reasonable. Commonwealth ex ...


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