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COMMONWEALTH PENNSYLVANIA v. EUGENE JOSEPH MCCOY (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
EUGENE JOSEPH MCCOY, APPELLANT



No. 2214 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division of Bucks County, denying an Evidentiary Hearing under the Post Conviction Hearing Act on Bills of Indictment Nos. 1720-01, 02, 03 and 04 of 1973.

COUNSEL

Arthur G. Nassau, Philadelphia, for appellant.

Alan M. Rubenstein, Deputy District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring and dissenting opinion, in which Price, J., joins. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 259 Pa. Super. Page 279]

This is an appeal from the Order of the Court of Common Pleas, Criminal Division of Bucks County, denying an Evidentiary Hearing under the Post Conviction Hearing Act. The procedural history relevant to the issues on appeal is as follows:

Defendant was charged with armed robbery, conspiracy and other related offenses in four separate indictments. On April 24, 1975, during a suppression hearing, the defendant arrived at a plea bargain with the Commonwealth which was submitted to and approved by the trial judge. A timely appeal to the Superior Court was filed by a second attorney on behalf of defendant but was discontinued on January 13, 1976.

On or about May 31, 1977, Appellant, through a third attorney, filed a Petition under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq., asserting two grounds for relief: ineffective assistance of counsel, and the unlawful inducement of his guilty plea. On July 22, 1977, the Petition was dismissed without a hearing. This appeal followed.

The Post Conviction Hearing Act, 19 P.S. 1180-4(b) states:

For the purposes of this act, an issue is waived if:

(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and

(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

[ 259 Pa. Super. Page 280]

It has been held that ineffective assistance of counsel in a prior appeal is an extraordinary circumstance justifying a failure to raise an issue on direct appeal. Commonwealth v. Page 280} Roundtree, 469 Pa. 241, 364 A.2d 1359 (1976); Commonwealth v. Valezquez, 244 Pa. Super. 327, 368 A.2d 745 (1976). Petitioner contends here that his appellate counsel was ineffective due to the fact that he failed to raise the issue of trial counsel's ineffectiveness. Appellant contends trial counsel should have moved to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 1100 for a failure to bring the case to trial within 270 days from the date of the complaint. The Supreme Court has held that ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents the accused. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). In Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977), the Supreme Court further held that appellant, by withdrawing his prior direct appeal, did not waive his right to challenge collaterally the lawfulness of his plea.

In Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), our Supreme Court sets forth the circumstances when a claim of ineffectiveness of trial counsel and appellate counsel could be raised. Under those standards, clearly the ineffectiveness of direct appeal counsel can be raised collaterally under the Post Conviction Hearing Act.

Thus the effectiveness of appellate counsel has been here properly preserved for appellate review. However, we are in a position where, in order for this court to evaluate the effectiveness of appellate counsel, we must determine if trial counsel rendered ineffective assistance. Appellant now contends trial counsel was ineffective as a result of his failure to raise an issue under Rule 1100 that could have resulted in the discharge of the Appellant. The guidelines that we must follow in this ...


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