No. 106 May Term, 1977, Appeal from the Order entered August 31, 1977, by the Court of Common Pleas, Criminal, County of Dauphin, at No. 396 Criminal Division 1976
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, 2nd Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., concurs in the order of affirmance, being of the opinion that the Pcha court committed neither an error of law nor an abuse of discretion in its disposition of the case. Roberts and Manderino, JJ., file dissenting opinions. Nix, J., dissents.
Appellant, Solomon Murray, was convicted by a jury of murder of the first degree. Post-verdict motions were denied and appellant was sentenced to life imprisonment. On direct appeal, we affirmed the judgment of sentence by a per curiam order. Commonwealth v. Murray, 473 Pa. 317, 374 A.2d 534 (1977).
Appellant then filed a pro se petition under the Post Conviction Hearing Act (PCHA).*fn1 Counsel was appointed and an amended petition was filed. Appellant's requested relief was denied without an evidentiary hearing and this appeal followed.
Appellant believes he was denied the effective assistance of trial counsel for (1) failing to call four defense witnesses; (2) failing to cross-examine a majority of the Commonwealth's witnesses; and (3) failing to object to comments about appellant's silence at the time of his arrest. We do not reach the merits of appellant's claims, as they have not been properly preserved for appellate review.
The facts are as follows. At trial, appellant was represented by private counsel. On direct appeal to this court, appellant was represented by the Dauphin County Public Defender's Office. When appellant filed his pro se PCHA petition, a different private counsel was appointed to assist him in the PCHA proceedings. Appellant is represented by this third attorney on this appeal.
In Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), we held that trial counsel's effectiveness must be challenged on direct appeal where appellate counsel was not trial counsel. ...