No. 3 MAY TERM 1978, Appeal from the Order entered December 23, 1977 of the Court of Common Pleas, Criminal Division of Adams County, Pennsylvania at No. CC-31-77
Robert L. McQuaide, Gettysburg, for appellant.
Gary E. Hartman, Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Roberts, J., filed a concurring opinion in which Eagen, C. J., joined. Nix and Manderino, JJ., filed dissenting opinions.
In this appeal from denial of relief under the Post Conviction Hearing Act, appellant, Charles Leslie Newell, asserts that he did not waive the right to raise the issues here presented; that he should be permitted to withdraw his guilty plea to murder in the third degree because defense trial counsel was ineffective for failing to appeal and raise as error that the trial court, prior to accepting appellant's guilty plea, did not outline the elements of the crime charged in understandable terms. We disagree with appellant and affirm the order of the PCHA Court.
On October 26, 1976 appellant and Randy Lee Toner, shot and killed one Jack Pritt and subsequently stole certain items of his personal property. Appellant made a voluntary statement to the Pennsylvania State Police admitting his involvement two days after the crime was committed. There was some dispute as to who actually fired the shots. Newell testified on behalf of the Commonwealth at the trial of Toner. His testimony clearly indicated that both he and Toner committed the crimes with which they were charged. On March 8, 1977 Newell entered a plea of guilty to murder in the third degree. Newell had been charged with first degree murder. The Commonwealth agreed to accept a plea of guilty to third degree murder, and not to process the related prosecution for theft. Newell was sentenced on April 13, 1977, to a term of not less than five (5) nor more than fifteen (15) years in a state correctional institution. Newell did not appeal within the required thirty (30) day period. On August 15, 1977, appellant filed a pro se PCHA Petition. Counsel was appointed and on September 28, 1977 an amended PCHA Petition was filed along with a petition to withdraw the guilty plea nunc pro tunc. The petitions were denied after hearing and appeal was taken to this court.
The Post Conviction Hearing Act, 19 P.S. 1180-4(b), provides that an issue is waived if the petitioner knowingly
and understandingly failed to raise it and it could have been raised on appeal, and the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
The PCHA court properly rejected the assertions of the petitioner.
The proper test for determining the effectiveness of counsel is whether the course of action chosen by counsel has some reasonable basis designed to effectuate his client's best interest. Commonwealth ex rel. ...