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decided: May 31, 1979.


No. 729 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia, Criminal Division, dated October 18, 1977, denying post-conviction hearing relief, on Bills of Indictment numbers 1092 and 1103 of February Term, 1968.


Stanford Shmukler, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Andrew B. Cohn, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion.

Author: Roberts

[ 485 Pa. Page 232]


On May 20, 1969, appellant was tried by a jury on charges of murder of the first and second degree and aggravated robbery. He was convicted of murder of the first degree and sentenced to death. After the appointment of new counsel, appellant took a direct appeal. On September 7, 1972, this Court modified appellant's sentence to life imprisonment and affirmed the judgment of sentence in other respects. Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). On March 26, 1974, appellant filed a pro se petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, §§ 1 et seq., 19 P.S. §§ 1180-1 et seq., in which he alleged for the first time that he was entitled to a charge on voluntary manslaughter.*fn1 Appellant's petition was dismissed without appointment of counsel and he appealed. This Court vacated the PCHA court's order and remanded for the appointment of counsel to assist appellant. Commonwealth v. Bradley, 470 Pa. 602, 369 A.2d 1155 (1977).

On remand to the PCHA court, counsel was appointed and appellant's petition was amended. The amended petition included the allegation that trial counsel was ineffective in failing to object to the trial court's jury charge that voluntary manslaughter was not a permissible verdict. The PCHA court held, inter alia, that appellant's claims were waived because not asserted by newly appointed counsel on direct appeal.

After the denial of his PCHA petition, appellant obtained new appointed counsel who filed this appeal. Appellant argues that the post-conviction court erred in denying his claim that trial counsel was ineffective. He now seeks to augment that claim by alleging here for the first

[ 485 Pa. Page 233]

    time that counsel representing appellant on direct appeal was himself ineffective in failing to allege the ineffectiveness of trial counsel. We may not, however, consider this supplemental claim because it was not presented to the post-conviction court and therefore has not been preserved for review. E. g., Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977).*fn2 In the absence of any adequate explanation for the failure of counsel on direct appeal to claim the ineffectiveness of trial counsel, the PCHA court's conclusion that appellant waived the claim of trial counsel's ineffectiveness must be upheld. Post Conviction Hearing Act, 19 P.S. § 1180-4(b) & 4(c) (Supp.1978-79).*fn3

The order dismissing appellant's petition is affirmed.

MANDERINO, Justice, dissenting.

I dissent. This Court has held that in order to reach the merits of trial counsel's ineffectiveness, an appellant must raise the issue of each successive attorney's ineffectiveness. This logic is now leading us into becoming entrapped in a legal morass.

In the case before us, PCHA counsel, alleged in the PCHA petition that trial counsel was ineffective. However, since PCHA counsel failed to include a claim that appellate counsel was also ineffective, the issue was waived. Similarly, present counsel alleged before this Court that trial and appellate counsel were ineffective but failed to include a claim that PCHA counsel was ineffective. Therefore, the majority reasons, the claim of trial counsel's ineffectiveness is waived. Does this mean that if a fifth attorney were to take appellant's case and allege that trial counsel, appellate

[ 485 Pa. Page 234]

    counsel, PCHA, and present counsel were all ineffective, this Court would finally reach the merits of trial counsel's ineffectiveness?

I am aware that there may be different reasons for trial counsel to employ one strategy or another and that therefore trial counsel's effectiveness may sometimes only be determined through an evidentiary hearing. However, there are no strategic reasons for not raising issues at the appellate stage and this Court can determine of its own accord whether counsel beyond the trial level was ineffective or not. Therefore, we should remove ourselves from hypertechnicalities and infer the allegation of PCHA counsel's ineffectiveness and decide the issues of ineffectiveness on the merits.

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