No. 70 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Indictment No. 662, June Sessions, 1968; No. 86 January Term, 1977, Appeal from the Order of the Court of Common Pleas, Philadelphia County, Trial Division, Criminal Section, Granting Defendant Leave Nunc Pro Tunc, to Refile a Direct Appeal In the Supreme Court of Pennsylvania as of June Session, 1968, No. 662
John W. Packel, Asst. Public Defender, Barnaby Wittels, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty., Maxine J. Stotland, Asst. Dist. Atty., Philadelphia, for appellee.
Manderino, Justice. O'Brien and Nix, JJ., did not participate in the consideration or decision of these cases. Eagen, C. J., filed a concurring opinion.
Appellant, Milton James, was convicted of murder in the first degree on October, 1969. Post-verdict motions were denied and the judgment of sentence was affirmed by this Court. Commonwealth v. James, 450 Pa. 52, 296 A.2d 762 (1972) (three justices dissented concluding that the appellant had not been adequately informed of his constitutional rights). In October of 1973, appellant filed a petition for a writ of habeas corpus in the Federal District Court for the Eastern District of Pennsylvania. The petition was denied without an evidentiary hearing and the order was affirmed on appeal in February of 1975. In November of 1975, appellant filed a petition under the Post Conviction Hearing Act. In that petition he claimed that counsel in his previous appeal to this Court had been ineffective for failing to raise the alleged ineffectiveness of trial counsel. In that PCHA petition appellant also presented facts concerning the alleged ineffectiveness of trial counsel. Following an evidentiary hearing, the PCHA court concluded that "serious questions" had been raised concerning trial counsel's effectiveness and that counsel should have presented these issues in appellant's original appeal. According to the PCHA court, appellate counsel's failure to do so constituted ineffectiveness of counsel entitling the appellant to a new appeal before this Court. Except for stating that "serious questions" were raised, the PCHA court did not finally determine the issue of trial counsel's effectiveness, stating that the issue was reviewable in the new appeal being granted to appellant. This appeal from the original judgment of sentence then followed.
Following the PCHA court's order, the prosecution filed a cross-appeal contending that the order granting appellant a new appeal was improper. We will consider the questions raised by both appeals. Throughout this opinion the word "appellant," however, refers to Milton James.
The prosecution first contends that the PCHA court's order was improper because a trial level court should not decide whether an attorney rendered effective assistance of counsel in an appeal before this Court. We reject this argument as we have previously. Although disagreeing on other issues, five members of this Court agreed in Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977), that a trial court does have the authority to determine appellant counsel's effectiveness and grant a new trial if necessary.
The prosecution also contends that the PCHA court erred when it concluded that appellant was denied the effective assistance of counsel in his original appeal to this Court. The prosecution argues that appellate counsel's decision not to raise the ineffectiveness of trial counsel had a reasonable basis to effectuate the interest of appellant because appellant had a second avenue of appeal via its PCHA petition. The prosecution argues that since our decision in Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975) requiring appellate counsel to raise trial counsel's ineffectiveness was decided after this appellant's first appeal, that appellate counsel cannot be held ineffective for failing to raise a claim which was not then required. This argument ignores the fact that appellate counsel is required to raise trial counsel's ineffectiveness, or waive this claim, by the Post Conviction Hearing Act which was effective in 1966, long before appellant's first appeal or even his trial. Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1978-79).
The evidence at appellant's 1969 trial showed that on April 18, 1968, appellant and Donald Lee were in Lee's apartment when Louis Glover came to visit. Glover and Lee began to argue and, after Glover refused to leave, Lee grabbed a kitchen knife and pursued Glover out of the apartment and into the street. While Glover was shouting insulting epithets, appellant, who had followed Lee, grabbed the knife from Lee and chased Glover down the street. ...