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COMMONWEALTH PENNSYLVANIA v. KEVIN LEVI GANS (07/24/79)

submitted: July 24, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN LEVI GANS, APPELLANT



No. 145 Special Transfer Docket, Appeal from Order Denying Post Trial Conviction Relief by the Court of Common Pleas, Criminal Division, of Philadelphia County, at No. 1604 February Term, 1974

COUNSEL

Carmen C. Nasuti, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: O'brien

[ 271 Pa. Super. Page 195]

Appellant, Kevin Levi Gans, was convicted by a jury of murder of the first degree and various weapons offenses for the January 30, 1974, stabbing death of Donald Charles. Post-verdict motions were filed, argued and denied. Thereafter,

[ 271 Pa. Super. Page 196]

    appellant was sentenced to a term of life imprisonment on the murder conviction and a term of two and one-half to five years for possession of instrument of crime. Subsequently, represented by counsel other than his trial counsel, appellant filed a direct appeal in the Supreme Court of Pennsylvania. On March 17, 1976, that court affirmed the judgment of sentence. Commonwealth v. Gans, 466 Pa. 425, 353 A.2d 427 (1976).

On June 23, 1976, appellant filed a petition pursuant to the provisions of the Post Conviction Hearing Act*fn1 in which he challenged the constitutional effectiveness of trial counsel's representation as well as the effectiveness of appellate counsel for failure to argue ineffective assistance of trial counsel on direct appeal. The court below denied appellant's post-conviction petition and from that denial the instant appeal was taken.

Appellant was represented by counsel other than trial counsel on his direct appeal.

"[I]neffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant. It follows then that when newly appointed post-trial counsel fails to assign the ineffectiveness of trial counsel as a ground for post-trial relief, the issue of trial counsel's ineffectiveness is not properly preserved for appellate review." Commonwealth v. Hubbard, 472 Pa. 259, 276 n.6, 372 A.2d 687, 695 n.6 (1977).

No claim of alleged ineffectiveness of trial counsel was advanced in appellant's direct appeal. As to any such claim, then, "[t]here is a rebuttable presumption that a failure . . . to raise an issue is a knowing and understanding failure." 19 P.S. ยง 1180-4(c). Appellant has, however, in his post-conviction petition, attempted "to prove the existence of extraordinary ...


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