Appeal No. 404 January Term, 1979, from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, dated September 20, 1979, Denying Appellant's Petition Under the Post-Conviction Hearing Act; Edward J. Blake, Judge.
Joel Harvey Slomsky, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Maureen Brennan, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Roberts, J., filed a dissenting opinion in which O'Brien, C. J., joined.
ROBERTS, Justice, dissenting.
I dissent from this Court's per curiam affirmance of the order of the PCHA court. On this petition for post-conviction relief, appellant alleges that his trial counsel was ineffective for eliciting on cross-examination of two Commonwealth witnesses that these two witnesses had previously
identified appellant from photographs shown to them by police. Appellant contends that he was deprived of a fair trial because the jury could reasonably have inferred from this testimony that appellant had engaged in prior criminal activity.
Contrary to the finding of the PCHA court, this issue has not previously been litigated. Although trial counsel, in representing appellant on direct appeal from judgment of sentence, challenged the admissibility of this cross-examination testimony, he did not challenge his own ineffectiveness for having introduced this testimony into evidence. Commonwealth v. Inge, 467 Pa. 323, 356 A.2d 771 (1976). Thus, the issue of ineffective assistance of trial counsel has not been previously, or finally, litigated. Indeed, because trial counsel could not reasonably have been expected to raise his own ineffectiveness on direct appeal, appellant's first opportunity to raise the ineffectiveness of trial counsel was in this PCHA proceeding. Thus, the PCHA court erred in failing to address the merits of appellant's PCHA claim. Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388 (1979); Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
No reasonable basis for introducing prior identification testimony of the Commonwealth witnesses was advanced by appellant's trial counsel at the evidentiary hearing which was conducted by the PCHA court. Indeed, trial counsel stated that he did not know what the witnesses would answer to his questions, but that, even so, he pursued the line of questioning regarding prior identification in order to impeach the witnesses' credibility. However, trial counsel in no respect established either at trial or at the PCHA evidentiary hearing, how such testimony was relevant for the purpose of impeachment. Further, even the Commonwealth's brief ...