No. 2435 October Term, 1977 Appeal from the Order in the Court of Common Pleas of Montgomery County, Nos. 4093, 4332, 4335, 4365, 4377, 4497 and 4821 October Term, 1974 and No. 363 January Term, 1975.
Barry M. Miller, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Van der Voort, J., files a dissenting opinion. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 271 Pa. Super. Page 574]
The instant appeal is from an order dismissing appellant's petition under the Post Conviction Hearing Act.*fn1 For the reasons stated herein, we reverse the order of the trial court.
[ 271 Pa. Super. Page 575]
On March 5, 1975, appellant pleaded guilty to numerous drug and robbery offenses, and on May 2, 1975, was sentenced to a term of imprisonment of from ten (10) to twenty-five (25) years. He was represented at the proceedings by a member of the public defender's office. No direct appeal was taken. On June 6, 1975, a PCHA petition was filed alleging, inter alia, ineffectiveness of trial counsel. A hearing was held during which appellant was represented by different counsel from the public defender's office. The only contention presented at the hearing was that trial counsel was ineffective for inducing appellant to plead guilty by misrepresenting the length of the probable sentence. The petition was dismissed and no appeal taken.
On March 4, 1977, appellant filed a pro se PCHA petition entitled "Motion to Amend Post-Conviction Petition." Independent counsel not associated with the public defender's office was appointed, and a hearing held on May 27, 1977. At the hearing, appellant alleged that his guilty plea colloquy was inadequate in failing to satisfy the requirements of Pa.R.Crim.P. 319,*fn2 and that trial counsel and appellate counsel were ineffective for failing to challenge the alleged defects. The trial court ruled: (1) that the alleged defects in the colloquy had been waived because not presented in the first PCHA action; (2) that the ineffectiveness of trial counsel had been waived because no appeal had been taken
[ 271 Pa. Super. Page 576]
from the dismissal of the first PCHA petition; and (3) that on the merits, there were no defects in the guilty plea colloquy, nor had either trial or first PCHA counsel acted ineffectively. Appellant claims, however, that because the initial challenge to the effectiveness of trial counsel from the public defender's office was made by a different counsel from that same office, that issue has not been finally litigated. In the same light, he asserts that the alleged defects in the colloquy have not been waived, because failure by trial and PCHA counsel to challenge those defects constitutes the basis for their alleged ineffectiveness. Reviewing the record, we must agree with appellant that the issues have not been finally litigated or waived.
Generally, the issue of trial counsel's effectiveness must be pursued in the first available proceeding at which that counsel does not represent the defendant. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Hairston, 251 Pa. Super. 93, 380 A.2d 393 (1977). If the effectiveness of trial counsel is challenged by new counsel in a PCHA proceeding but not pursued in an appeal, that issue is waived, and the only subsequent issue is the alleged ineffectiveness of the new counsel. See, e. g., Commonwealth v. Dancer, supra. However, in Commonwealth v. Bundy, 480 Pa. 543, 391 A.2d 1018 (1978), the supreme court held that a PCHA challenge to the effectiveness of trial counsel will not be a conclusive pronouncement on that subject when the PCHA counsel and trial counsel are from the same office. The court reasoned,
"[W]here counsel raises his own or his associates' inadequacy, we should not accept that appraisal as an objective view of counsel's stewardship. Even though associate counsel may make a good faith effort to critically review the record of the earlier proceeding, we cannot accept such an assessment as an objective and detached evaluation of earlier counsel's ...