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COMMONWEALTH PENNSYLVANIA v. WALTER LOWENBERG (02/09/81)

decided: February 9, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER LOWENBERG, APPELLANT



No. 80-1-45, Appeal from the Order entered on November 14, 1979 in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division denying Post-Conviction Relief at No. CC7502266

COUNSEL

John H. Corbett, Jr., and David G. Metinko, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., files an Opinion in Support of Affirmance in which Flaherty and Kauffman, JJ., join. Flaherty, J., files an Opinion in Support of Affirmance in which Nix and Kauffman, JJ., join. Roberts, J., files an Opinion in Support of Reversal in which O'Brien, C. J., and Larsen, J., join.

Author: Per Curiam

[ 493 Pa. Page 233]

ORDER

The Court being equally divided, the order of the Court of Common Pleas of Allegheny County is affirmed.

[ 493 Pa. Page 234]

OPINION IN SUPPORT OF AFFIRMANCE

NIX, Justice.

Appellant had a counseled direct appeal to this Court in which the admissibility of his confession was carefully scrutinized and found to have been proper. Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978). After the filing of a pro se petition for relief under the Post Conviction Hearing Act,*fn1 counsel was appointed to represent appellant in those proceedings. That counsel concluded in his considered judgment that prior counsel had been effective and that the record did not reflect reversible error.*fn2 While this should have satisfied even the most scrupulous guardian of the rights of a defendant, the Opinion in Support of Reversal does not agree.

The Opinion in Support of Reversal concludes that post-conviction counsel was ineffective. The basis for this startling conclusion is that he did not uncover some dereliction on the part of his predecessor. Significantly, the Opinion in Support of Reversal has not pointed to a single error in the trial or a legitimate objection that was overlooked. Instead, it condemns PCHA counsel for not raising an objection although the Opinion in Support of Reversal does not demonstrate an error in counsel's conclusion that there was no claim of merit to raise.*fn3

[ 493 Pa. Page 235]

Implicitly, the Opinion in Support of Reversal seeks to support its result in this case upon the teaching of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders, the United States Supreme Court, mindful of the obligation to afford equal justice to an indigent appellant, concluded that court-appointed appellate counsel in the first direct appeal from a criminal conviction must be shown to have in fact been an active advocate and not just an amicus curiae. The rationale for this conclusion was since a person with means would have the right of an appeal, even though the claims may be without merit, that same right should be afforded the indigent appellant.

Without commenting upon the wisdom of this judgment (we are bound under the Supremacy Clause*fn4 to follow that holding), I do think it imperative to note that, that holding was limited to the first direct appeal from a criminal conviction. In this case, we are concerned not with a direct appeal, but a collateral attack under a state statutory provision. To suggest that a person with means might be able to frustrate the purpose requires that we permit all defendants the right to misuse this statutory scheme for relief is clearly a non sequitur. The sound jurisprudential way of eliminating abuse of process is not to provide the opportunity for that abuse to all equally but, rather, to eradicate it completely.

[ 493 Pa. Page 236]

OPINION IN SUPPORT OF AFFIRMANCE

FLAHERTY, Justice.

The Post Conviction Hearing Act*fn1a was not intended to eliminate the finality of criminal convictions by allowing defendants to invoke an endless series of collateral proceedings. Convictions must achieve, at a reasonable time, the status of finality. Appellant's P.C.H.A. petitions assert, in an ineffectiveness context, underlying claims of error which are not of such an exceptional nature as to warrant an opportunity for consideration beyond an initial P.C.H.A. proceeding. This conclusion rests, as explained in my authored dissent in Commonwealth v. Watlington, 491 Pa. 241, 246, 420 A.2d 431, 437 (1980), on appellant's failure to assert a "colorable due process claim significantly implicating the truth determining process, which, were it unaddressed by the Court, could have the effect of imprisoning an innocent person." The conviction in the instant case was based upon overwhelming evidence which included, inter alia, repeated full confessions which have already been finally determined by this Court to have been admissible. Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978). By denying appellant an opportunity for further P.C.H.A. hearings, no significant risk would be created of imprisoning an innocent person.

Opinion IN SUPPORT OF REVERSAL

ROBERTS, Justice.

Appellant Walter Lowenberg appeals from an order of the Court of Common Pleas of Allegheny County dismissing, without a hearing, his second petition for relief 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. (Supp. 1979). Under the standards enunciated in Anders v. California, 386 U.S. 738,

[ 493 Pa. Page 23787]

S.Ct. 1396, 18 L.Ed.2d 493 (1967), Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), it is clear that appellant did not receive effective assistance of counsel in presenting his claims in either of his post-conviction petitions. Thus, the order of the PCHA court should be vacated and the case remanded for a counseled evidentiary hearing.

On March 10, 1976, appellant, then sixteen years old, was found guilty by a jury of murder of the third degree and sentenced to a term of ten to twenty years of imprisonment. Appellant's privately retained trial counsel filed and argued post-trial motions on his behalf, and, upon their denial, an appeal was taken to this Court. The issues raised in that appeal included the admissibility of an incriminating statement made by appellant and the legality of his arrest.*fn1 A ...


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