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filed: September 7, 1979.


No. 472 March Term, 1977, Appeal from the Order in the Court of Common Pleas of Mifflin County, Criminal Division, Nos. 46 1/2 of 1974, and 2, 21 and 131 of 1975.


Jeffrey L. Snook, Lewistown, for appellant.

Richard M. Mohler, District Attorney, Lewistown, for Commonwealth, appellee.

Price, J., files an opinion in support of affirmance in which Hester and Van der Voort, JJ., join. Spaeth, J., files an opinion in support of reversal in which Cercone, President Judge, and Hoffman, J., join. Jacobs, former, President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 269 Pa. Super. Page 322]

The six judges who heard this appeal being equally divided, the order is affirmed.


PRICE, Judge:

On March 11, 1977, appellant filed a counseled petition under the Post Conviction Hearing Act (PCHA)*fn1 alleging numerous errors regarding four separate convictions. The court below conducted a hearing on the petition and subsequently issued an order correcting illegal sentences imposed on two convictions, but denying all other requests for relief. For the reasons set forth herein, we affirm the court below.

The salient facts are as follows. Following a non-jury trial, on January 2, 1975, appellant was convicted of burglary*fn2 and criminal trespass*fn3 at No. 46 1/2 of 1974. He filed post-trial motions for a new trial and in arrest of judgment in that case.

On May 13, 1975, appellant was convicted by jury of escape*fn4 at No. 2 of 1975. Finally, on August 11, 1975, appellant, after a complete colloquy, withdrew his post-trial motions filed in No. 46 1/2 of 1974. He also waived the right

[ 269 Pa. Super. Page 323]

    to file such motions in No. 2 of 1975, although appellant had already clearly waived such right by failure to file within ten days of his conviction. Pa.R.Crim.P. 1123(a). Appellant also pleaded guilty to burglary,*fn5 theft,*fn6 and receiving stolen property*fn7 at No. 21 of 1975, and escape*fn8 at No. 131 of 1975.

On August 11, appellant was sentenced to pay the costs of prosecution and make restitution on all counts. Further, he was sentenced to imprisonment of ten to twenty years at No. 46 1/2 of 1974; seven and one-half to fifteen years at No. 2 of 1975; ten to twenty years at No. 21 of 1975; and seven and one-half to fifteen years at No. 131 of 1975. Sentences on Nos. 2, 21 and 131 of 1975 were to run consecutively to the sentence on No. 46 1/2 of 1974. Appellant was given credit for 216 days of incarceration served since February 21, 1974. It was specifically ordered that the minimum sentence to be served with respect to all four actions was twenty years.

To secure PCHA relief, the petitioner must establish that the errors alleged in his conviction or sentence have not been finally litigated or waived. 19 P.S. § 1180-3(d). One waives an issue if he knowingly and understandingly fails to raise it on direct appeal and it could have been raised then. 19 P.S. § 1180-4(b)(1). Further, failure to so raise an issue gives rise to a rebuttable presumption of "knowing and understanding" waiver. Although appellant asserted before the PCHA court that he requested that counsel pursue a direct appeal, and he attempted to substantiate this by offering into evidence three letters addressed to counsel regarding an appeal, the court below did not find appellant's contention credible. Instead, the court found that appellant had not requested that trial counsel perfect an appeal.

[ 269 Pa. Super. Page 324]

Counsel's failure to file an appeal, if he had been requested to do so by appellant, would have meant that the issues cognizable on direct appeal were not waived. Appellant's failure to explain satisfactorily the lack of a direct appeal renders those issues waived.*fn9

Appellant's argument that trial counsel was ineffective was not waived by his failure to perfect an appeal. If counsel on direct appeal is the same as trial counsel, and appellant does not raise trial counsel's ineffectiveness, it is not waived. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). This concept was enlarged upon in Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976):

"Here, since trial counsel, who Mabie contends was ineffective, would have been required to file post verdict motions and a direct appeal on the issue of his own ineffectiveness were such procedures initiated, it is similarly unrealistic to expect counsel to file motions and/or an appeal challenging his own effectiveness. Therefore, where a PCHA petition alleges as grounds for relief that trial counsel, with whom the petitioner consulted concerning

[ 269 Pa. Super. Page 325]

    the feasibility of appeal, has been ineffective and where trial counsel has not taken a direct appeal on behalf of the petitioner, the question of whether trial counsel was ineffective has not been waived for the purposes of review in a PCHA proceeding." Id., 467 Pa. at 469-70, 359 A.2d at 371-72 (footnote omitted).

Accordingly, we will consider appellant's arguments regarding trial counsel's ineffectiveness.

"[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967) (footnote omitted) (emphasis in original).

Appellant asserts counsel's ineffectiveness, other than the failure to file an appeal, on two bases.

"1. Counsel's promises which induced Defendant to plead guilty, withdraw his post verdict motions and waive the filing of post verdict motions;

2. Counsel's failure to assert Defendant's rights and failure to protect Defendant's rights and to attempt to assure Defendant's understanding at the proceedings on August 11, 1975[.]" (Appellant's Brief at 15).

Appellant contended at the PCHA hearing that counsel promised him a ten-year maximum sentence in exchange for his plea, his withdrawal of post-verdict motions in No. 46 1/2 of 1974, and his waiver of filing post-verdict motions in No. 2 of 1975. However, the court below found counsel's PCHA testimony more credible. He testified that on no occasion did he represent to appellant that a certain sentence would be obtained by pleading. He denied discussing the exact

[ 269 Pa. Super. Page 326]

    terms of sentence with the district attorney, the court, or appellant.

Further, appellant testified that counsel coached him on the appropriate responses and that counsel advised him to plead guilty to No. 21 of 1975, even though he did not commit the crime. The transcript of August 11, 1975, clearly refutes appellant's contentions. The court questioned him at length regarding his reasons for withdrawing post-trial motions and waiving the future filing of others. Appellant repeatedly stated that he was doing so voluntarily, without inducement or threats, and that it was his decision to do so. Defense counsel produced several letters addressed to him by appellant which stated that he wished to withdraw his post-verdict motions at No. 46 1/2 because they "didn't make sense." Appellant also felt that there were no meritorious motions to be filed in No. 2 of 1975. In any event, the time for filing such motions in No. 2 of 1975 had long passed by the time appellant waived his right to file.

The court below similarly found no merit to appellant's contention that counsel urged him to plead guilty at No. 21 of 1975, in spite of his innocence. Appellant insisted during the lengthy colloquy that there were no promises or inducements and that his plea was not coerced.

Although counsel several times stated at the PCHA hearing that he had no recollection of specific pre-colloquy conversations with appellant regarding his answers, the following transpired at the conclusion of his PCHA testimony:

"Q. [By the court] Now, Mr. Schaner, I recall that you said that you could not remember the specific conversation you had with Defendant prior to sentencing on August 11, 1975, my question is limited to coaching. My question is, did you coach the Defendant to misrepresent the truth at the colloquy?

A. Absolutely not.

Q. Did you coach him to conceal from the Court any conversation that had occurred between you and the District Attorney?

[ 269 Pa. Super. Page 327]

A. No indeed and may I admit that it was nothing to ...

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