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submitted: March 12, 1979.



Bruce D. Foreman, Harrisburg, for appellant.

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

Spaeth, Hester and Montgomery, JJ. Spaeth, J., filed a concurring and dissenting opinion.

Author: Montgomery

[ 272 Pa. Super. Page 550]

Appellant was convicted by a jury on two counts of burglary. Post-trial motions were filed and denied by the lower court. On January 3, 1975, Appellant was sentenced to a term of ten (10) to twenty (20) years imprisonment. This Court affirmed the judgment of sentence on direct appeal. Commonwealth v. Rhodes, 250 Pa. Super. 210, 378 A.2d 901 (1977). Two years later, Appellant filed a pro se petition under the Post Conviction Hearing Act (PCHA), 19 P.S. § 1180-1 et seq.

In this PCHA petition, Appellant alleged that his conviction resulted from: (1) the denial of his constitutional right to effective representation of counsel; (2) the abridgement of a right guaranteed by the constitution or laws of this

[ 272 Pa. Super. Page 551]

Commonwealth or of the United States; and (3) the unavailability at the trial of exculpatory evidence that has subsequently become available and which would have affected the outcome of the trial if it had been introduced. On January 12, 1978, Appellant's petition was dismissed without a hearing by the PCHA Court. This appeal followed, and Appellant has limited his arguments before this Court to claims of ineffective counsel.

The first question presented is whether the issue of ineffective counsel is properly before this Court. Appellant was represented at trial and on appeal by counsel from the Public Defender's Office of Dauphin County. Appellant is represented in post-conviction proceedings and on this appeal by court-appointed counsel who is not associated with that office. The Post Conviction Hearing Act specifically provides in § 1180-3(c)(6), that a person is eligible for post-conviction relief if he is denied effective representation by competent counsel. Absent a showing of extraordinary circumstances, however, that issue is deemed waived if it is not raised on direct appeal. 19 P.S. § 1180-4(b)(2). The term "extraordinary circumstances" has been held to include the instance where an appellant is represented at trial and on direct appeal by the same counsel. In such instances, failure to raise the issue of ineffective trial counsel on direct appeal is not deemed to be a waiver of that issue. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978). Thus, the issue of ineffective trial counsel has not been waived and is properly before this Court in the instant case.

The trial record discloses that on October 4, 1971, a home on Sunnyside Avenue in Susquehanna Township, Dauphin County, was burglarized. Entrance was achieved by breaking a pane of glass in the kitchen door. On October 10, 1971, at approximately 8:30 P.M., two people were seen by a neighbor on the rear porch of a residence located on Colonial Road, Susquehanna Township. After breaking the glass in the door, the burglars realized that they were being observed, and fled. The neighbor gave chase and apprehended

[ 272 Pa. Super. Page 552]

Lillian Deustch, who subsequently identified her escaping companion as one Sam Jenkins. Jenkins was never found. In March, 1972, Deustch pleaded guilty to attempted burglary and assault in connection with the incident of October 10, 1971. While in prison in June, 1972, Deustch informed authorities that her companion in the October 10, 1971 burglary was actually Jerry Rhodes. Complaints were filed in December, 1972 charging Rhodes with both burglaries. At that time, however, Rhodes was incarcerated in Minnesota. The Commonwealth instituted extradition proceedings and Rhodes was finally returned to Dauphin County on October 29, 1974, where he was subsequently convicted.

Appellant alleges that at a number of critical junctures during the trial, his counsel failed to make alternative decisions which would have "at least some reasonable basis designed to effectuate his client's best interests." He cited Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) and Commonwealth v. Bronson, 457 Pa. 66, 321 A.2d 645 (1974). Appellant asserts that his trial attorney was ineffective because he failed to object to questioning of Appellant by the court which was purportedly irrelevant and highly prejudicial, and he failed to preserve this issue in post-trial motions. The questions to which he refers concerned Appellant's activities when he lived in Minnesota, whether he met the chief prosecution witness in a bar and whether he had been having sexual relations with her.

As a general rule, a trial judge may, in the exercise of his discretion, examine a witness. Commonwealth v. McGlory, 226 Pa. Super. 493, 313 A.2d 326 (1973). The rationale for this rule is that it is sometimes necessary for the trial judge to question a witness in order to clarify an important fact or a disputed point. Commonwealth v. Miller, 234 Pa. Super. 146, 339 A.2d 573 (1975).

The trial record reveals that the judge's questioning of Appellant did not constitute an abuse of discretion. To the contrary, it ...

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