No. 7 May Term 1979, Appeal from the Order of the Dauphin County Court of Common Pleas Denying Post Conviction Hearing Act Relief at No. 2678 Criminal Division 1972.
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, First Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen and Flaherty, JJ., concurred in the result. Eagen, C. J., dissents and would remand for a hearing.
This is an appeal from the denial of post-conviction relief, without a hearing. To understand the issues raised herein, it is necessary to set forth in detail the procedural history. Robert Lee Hagood, appellant herein, was convicted of murder of the first degree on April 4, 1973 following a trial by jury. Post-verdict motions were filed, briefed and thereafter dismissed. During the proceedings at the trial level, including the post-verdict motions, appellant was represented
by a member of the Public Defender's office of Dauphin County. An appeal was filed with this Court on behalf of appellant by a second member of the Public Defender's office of Dauphin County. That appeal was subsequently quashed on May 5, 1975 because of noncompliance with the rules relating to the service of the notice of appeal. On or about July 30, 1976, appellant presented a pro se petition to this Court to reinstate his direct appeal. No objection was interposed by the Commonwealth and we granted reinstatement on August 20, 1976 and directed the appointment of new counsel. As a result of our order, a third member of the Public Defender's office of Dauphin County was appointed and prosecuted the direct appeal on Mr. Hagood's behalf.
In that appeal, appellant asserted, inter alia, that trial counsel was ineffective because of his failure to request a jury instruction. It was argued that counsel should have sought an accomplice charge to be given relating to the key Commonwealth witness. On July 8, 1977, we affirmed the judgment of sentence, per curiam, Commonwealth v. Hagood, 473 Pa. 379, 374 A.2d 693 (1977). On November 6, 1978, Hagood filed a petition under the Post-Conviction Hearing Act. Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq. ; 19 P.S. § 1180-1 et seq. (1966) (repealed eff. June 27, 1980). In this petition appellant contended, inter alia, that he had been denied representation by competent counsel. The hearing court appointed present counsel, who is not a member of the Public Defender's office, to represent appellant in the post-conviction proceeding. Pursuant to his appointment, present counsel filed a supplemental petition also raising the ineffectiveness of trial counsel alleging trial counsel's failure to make proper investigation of a prospective witness, who may have been helpful to the defense. The court below denied relief without hearing on January 19, 1979.
Appellant contends that he was denied competent representation by trial counsel and should have been granted relief by the post-conviction hearing court. As to this
complaint, the Commonwealth responds by charging that the issue is not reviewable at this point. Specifically, the Commonwealth argues that the question of trial counsel's competence was finally litigated in the direct appeal and, therefore, further review would be improper. 19 P.S. § 1180-4; Commonwealth v. McNeal, 479 Pa. 112, 387 A.2d 860 (1978); Commonwealth v. Bennett, 472 Pa. 314, 372 A.2d 713 (1977); Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973). The weakness of the Commonwealth's position is that it fails to recognize that throughout the direct appeal process appellant was being represented by members of the same public defender's office which represented him at trial. While it is true that appellant is required to raise the question of the ineffectiveness of counsel at the earliest possible moment, our cases have indicated that the earliest possible moment occurs when he is represented by new counsel. Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Lewis, 463 Pa. 180, 344 A.2d 483 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). This reasoning ...