No. 80-3-457, Appeal from the Order of the Court of common Pleas of Cumberland County at No. 321 Criminal 1978, dated February 8, 1980.
J. Wesley Oler, Jr., Asst. Public Defender, Cumberland, for appellant.
Kevin A. Hess, Asst. Dist. Atty., Cumberland, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.
Appellant Lynn Edward Jumper was tried before a jury in the Court of Common Pleas of Cumberland County and convicted of murder of the third degree on May 10, 1978. He appeared in court with his attorney to waive post-verdict motions and thereafter was sentenced to the maximum term of imprisonment of ten to twenty years. No direct appeal was taken from the conviction or the sentence.
In June 1979 appellant filed a pro se petition for relief under the Post Conviction Hearing Act (PCHA).*fn1 The Cumberland County Public Defender's Office was subsequently appointed by the court, and an amended PCHA petition was filed on August 10, 1979. In the PCHA petition, appellant alleged that his pre-trial motions and the right to appeal were not knowingly and intelligently waived and that the representation of trial counsel was ineffective in several regards.
After an evidentiary hearing, at which both appellant and his trial counsel testified, the PCHA court concluded that appellant's allegations were without merit. From this denial appellant appeals to us, raising five alleged examples of ineffectiveness of trial counsel and raising the issue of the voluntariness of his waiver of post-trial motions and of his right to appeal.
The right to collateral relief is precluded where the complaint sought to be raised by a petitioner has either been waived or finally litigated. Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (February 1981 Supp.); Commonwealth v. Fernandez, 487 Pa. 493, 410 A.2d 296 (1979); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). Thus if it is asserted that there has been an effective waiver of the right to file post-trial motions or of the right of appeal, a consideration
of subsequently raised substantive complaints will not be permitted until the question of waiver is first resolved. If there has been a waiver of those rights, the review process is terminated and subsequent complaints will not be entertained.
The question of ineffectiveness of counsel is not necessarily foreign to the issue of the waiver of appeal. If it can be demonstrated that counsel's ineffectiveness prevented a knowing or intelligent waiver of the right of appeal then the ineffectiveness of counsel is clearly germane to the waiver of appeal question. Commonwealth ex. rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967). If the alleged ineffectiveness is not related to the decision to waive the appeal, such a claim will not be considered once it is established that there has ...