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COMMONWEALTH PENNSYLVANIA v. FRANCISCO LOPEZ (12/28/78)

decided: December 28, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANCISCO LOPEZ, APPELLANT



No. 345 March Term, 1977, Appeal from the Order of the Court of Common Pleas of Dauphin County, Pennsylvania, denying the Post Conviction Hearing Act Petition at Nos. 686, 687 Criminal Division 1973.

COUNSEL

Bruce D. Foreman, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, concurs in the result. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 262 Pa. Super. Page 4]

This appeal is from denial of relief under the Post Conviction Hearing Act.*fn1 Following a trial by jury, appellant was convicted in November, 1974, on charges of assault with intent to kill and unlawful carrying of firearms. On December 3, 1974, appellant was sentenced to undergo imprisonment in a state correctional institution for a term of not less than 3 1/2 nor more than 7 years. No post-trial motions or direct appeal were taken by appellant. On December 15, 1976, appellant filed a Post Conviction Hearing Act Petition which was denied without an evidentiary hearing on March 18, 1977. This appeal followed.

It is appellant's contention that he is entitled to an evidentiary hearing at which he will present evidence in support of his allegations that he was denied his constitutional right to representation by competent counsel and that his right of appeal was obstructed by state officials, all of which, if proved, would entitle him to relief. The Commonwealth also asserts that an evidentiary hearing is required and that the case should be remanded. However, we do not decide the instant appeal on the apparent agreement on the issues among the parties, but will make an independent evaluation of the record.

Appellant first argues that his attorney, a member of the Dauphin County Public Defender's Office, did not competently represent him. He asserts that counsel was ineffective in failing to adequately investigate appellant's alleged mental incompetence at the time of the crime, from the time of the crime until trial began and during his trial; in failing to raise and present an insanity defense, and in failing to preserve appellant's appeal rights. The issue of ineffectiveness of counsel was not raised after trial through post trial motions and, as mentioned, no direct appeal was filed.

To be entitled to relief under the Post Conviction Hearing Act, a defendant must prove "that the error resulting

[ 262 Pa. Super. Page 5]

    in his conviction and sentence has not been finally litigated or waived." Section 3 of the Act of 1966, supra, 19 P.S. § 1180-3(d). An issue is waived if "the petitioner knowingly and understandingly failed to raise it . . ." and "the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue." Section 4 of the Act of 1966, supra, 19 P.S. § 1180-4(b)(1) & (2). Therefore, failure to raise an issue cognizable on direct appeal raises, at least, a rebuttable presumption that such failure was knowing and understanding absent the showing of extraordinary circumstances. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976).

In Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), the Pennsylvania Supreme Court stated that the Post Conviction Hearing Act and the principles of judgment finality "mandate that claims of ineffectiveness of counsel may only be raised in PCHA proceedings (1) where petitioner is represented on appeal by his trial counsel, for it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness. . . ." Id., 460 Pa. at 100, 331 A.2d at 438. Here, since trial counsel, who appellant contends was ineffective, would have been the one to file post trial motions and a direct appeal on the issue of his own ineffectiveness, it is unrealistic to expect him to assert this issue. "Therefore, where a PCHA petition alleges as grounds for relief that trial counsel, with whom the petitioner consulted concerning the feasibility of appeal, has been ineffective and where trial counsel has not taken a direct appeal on behalf of the petitioner, the question of whether trial counsel was ineffective has not been waived for the purposes of review in a PCHA proceeding." Commonwealth v. Mabie, supra 467 Pa. at 372, 359 A.2d at 372.

The guidelines for a finding of effective assistance of counsel were set forth by the Pennsylvania Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) where it was stated that ". . . counsel's assistance is deemed constitutionally ...


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