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COMMONWEALTH PENNSYLVANIA v. DONALD E. ALBERTS (02/20/81)

filed: February 20, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD E. ALBERTS, APPELLANT



No. 1415 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Lycoming County, entered on June 8, 1979 at No. 76-10,180, denying Appellant relief pursuant to the Post-Conviction Hearing Act.

COUNSEL

Peter T. Campana, Williamsport, for appellant.

Dean N. Livermore, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Price, Cavanaugh and Watkins, JJ.

Author: Watkins

[ 285 Pa. Super. Page 11]

This is an appeal from the order of the Court of Common Pleas of Lycoming County denying post-conviction relief on the claim of ineffectiveness of counsel. The appellant was convicted in a jury trial of one count of simple assault; post-conviction motions were filed and denied and he was sentenced to not less than one month nor more than twenty-three months and placed on immediate probation. An appeal to this Court was filed on his behalf by counsel other than trial counsel and later withdrawn.

Counsel then filed a petition under the Post Conviction Hearing Act alleging that trial counsel was ineffective for failing to call two witnesses. The court held that his decision not to call the witnesses was a reasonable exercise of his representation as their testimony would only relate to the credibility of witness Woodward and counsel properly felt that further impeachment of this witness was unnecessary.

The first count of the indictment alleged an attack on Woodward; and the second alleged an attack on the appellant. The jury acquitted Woodward, but convicted the appellant.

The issue of ineffectiveness of trial counsel was raised for the first time at post-conviction hearing. Ineffective assistance

[ 285 Pa. Super. Page 12]

    of counsel is an issue that should have been raised by the defendant on his direct appeal to this Court and this failure constitutes a waiver. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Lowry, 260 Pa. Super. 454, 394 A.2d 1015 (1978). Ineffective assistance of counsel has become the last ditch ploy of defendants in criminal cases and should not be encouraged.

The issue of waiver was raised by the Commonwealth at post-conviction hearing, but the court proceeded to hear the matter on the merits and denied relief.

The issue was waived as the appellant "knowingly and understandably" failed to raise it on direct appeal and could have raised it on appeal 19 P.S. § 1180-4(b)(1) (Supplement 1978). The act created a rebuttable presumption of knowingly and understandably failing to raise the issue. 19 P.S. § 1180-4(c) (Supplement 1978). This may be overcome upon proof that extraordinary circumstances existed justifying failure to raise it or other proof that the waiver was not knowingly and understandably made. 19 P.S. § ...


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