No. 2373 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal, at Nos. 615-619, September Sessions, 1972.
Anthony F. List, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 265 Pa. Super. Page 432]
On July 22, 1972, a 16-year old youth was beaten severely by more than one person at a shopping center near his home. In connection with this beating, the appellant herein was arrested and subsequently indicted on charges of simple assault and battery, aggravated assault and battery, assault with intent to kill and conspiracy. After a jury trial the appellant was found guilty of all of the above-mentioned charges. Post-verdict motions were filed, argued and dismissed.
[ 265 Pa. Super. Page 433]
Up to and including the sentencing procedure, appellant was represented by his privately retained counsel. On direct appeal to this Court appellant was represented by an assistant public defender from the Office of the Delaware County Public Defenders Office. A per curiam order by the Superior Court affirmed the judgment of sentence. Commonwealth v. Lochman, 231 Pa. Super. 792, 331 A.2d 526 (1975). Subsequently, appellant filed an appeal to the Pennsylvania Supreme Court for allowance of appeal from the judgment of the Superior Court and this was denied, per curiam, on May 20, 1975. On June 12, 1975, appellant filed a petition under the Post Conviction Hearing Act (PCHA),*fn1 but the petition was never reached nor decided on its merit. On March 1, 1977, the appellant, now represented by his third attorney, filed a subsequent petition under the Post Conviction Hearing Act. After a hearing was held on the petition, an order denying the requested relief was issued. It is from this dismissal of appellant's petition that the instant appeal is taken.
The appellant asserts two grounds for relief in this appeal. His first contention is that he was denied his constitutional right to effective assistance of counsel at trial. His second allegation is that the Commonwealth withheld certain purportedly exculpatory evidence which should have been made available to defense counsel. In support of his first contention, the appellant sets forth in his brief three ways in which trial counsel was allegedly ineffective: failure to call certain alibi witnesses, failure to interview the Commonwealth's witnesses prior to trial and failure to establish the appellant's "non-membership" in the "Warlocks Motorcycle Club."
Before evaluating the merits of appellant's arguments, it is initially necessary to address the issue of waiver. The Post Conviction Hearing Act provides that to be eligible for relief under that Act, the petitioner must establish, inter alia, that the claim upon which he seeks relief "has not been finally litigated or waived." Post Conviction Hearing Act § 3(d), 19 P.S. § 1180-3(d) (Supp.1978-79). For purposes of
[ 265 Pa. Super. Page 434]
the Act an issue is waived if the petitioner "knowingly and understandingly failed to raise it" on direct appeal and it could have been raised on direct appeal. Post Conviction Hearing Act § 4(b)(1), 19 P.S. § 1180-4(b)(1) (Supp.1978-79). The Act expressly provides for a rebuttable presumption that failure to appeal a ruling or to raise an issue is a knowing and understanding failure. Post Conviction Hearing Act § 4(c), 19 P.S. § 1180-4(c) (Supp.1978-79). However, if the petitioner can prove the existence of "extraordinary circumstances" justifying his failure to raise the issue, then the issue is not waived and may be heard and considered in a PCHA hearing despite petitioner's failure to raise it on direct appeal. Post Conviction Hearing Act § 4(b)(2), 19 P.S. § 1180-4(b)(2) (Supp.1978-79).
It is settled law that the ineffectiveness of trial counsel can be raised on direct appeal. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). However, failure to raise on direct appeal the issue of ineffective trial counsel does not necessarily mean that such failure was "knowing and understanding." As the Pennsylvania Supreme Court stated in Commonwealth v. Dancer, Id., claims of ineffectiveness of counsel may be raised in PCHA proceedings "1) where petitioner is represented on appeal by his trial counsel . . ., 2) where the petitioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record, 3) where the petitioner is able to prove the existence of other 'extraordinary circumstances' ...