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COMMONWEALTH PENNSYLVANIA v. MICHAEL ANDERSON (10/24/79)

SUPERIOR COURT OF PENNSYLVANIA


submitted: October 24, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL ANDERSON, APPELLANT

No. 326 Special Transfer Docket, Appeal from Order of the Court of Common Pleas of Philadelphia, Criminal Division, No. 143 January Term, 1972.

COUNSEL

Robert I. Segal, Philadelphia, for appellant.

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

Cercone, President Judge, and Roberts*fn* and Lipez, JJ.

Author: Per Curiam

[ 273 Pa. Super. Page 143]

In this appeal from denial of relief under the Post Conviction Hearing Act,*fn** appellant contends that trial counsel was ineffective. We affirm.

On February 1, 1973, a jury convicted appellant of murder of the first degree. After denying post-verdict motions, the trial court sentenced appellant to life imprisonment. The Supreme Court of Pennsylvania affirmed the judgment. See Commonwealth v. Anderson, 464 Pa. 541, 347 A.2d 674 (1975). Appellant obtained new counsel and filed a PCHA petition alleging ineffective assistance of trial counsel. After a hearing, the PCHA court denied the petition.

[ 273 Pa. Super. Page 144]

The indictment against appellant charged murder generally. At trial, the Commonwealth relied upon alternative theories of liability, arguing that appellant had committed a premeditated murder or a felony-murder. The trial court instructed the jury on both theories. Appellant argues that, where the indictment charged murder generally, he lacked notice of the Commonwealth's theories of the case and that trial counsel was ineffective for failing to object to this lack of notice. In his PCHA petition, however, appellant did not assign this failure as the basis for his claim of ineffective assistance of counsel. Thus, the issue is not preserved for review. Cf. e. g., Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) (sentencing hearing); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) (post-verdict motions); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (trial); Commonwealth v. Evans, 267 Pa. Super. 59, 405 A.2d 1302 (1979) (suppression hearing); Commonwealth v. Felder, 266 Pa. Super. 489, 405 A.2d 925 (1979) (guilty plea hearing).


*fn* Justice Samuel J. Roberts of the Supreme Court of Pennsylvania, is sitting by designation.


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