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decided: December 24, 1981.


No. 80-3-771, Appeal from the Order of September 17, 1980, of the Court of Common Pleas, Criminal Division, of Chester County, at No. 158 January Term, 1973


John H. Spangler, West Chester (court-appointed), for appellant.

Lee Ruslander, Chief, Appeals Div., West Chester, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Roberts, Nix and Larsen, JJ., concur in the result. Flaherty, J., files a dissenting opinion, which Kauffman, J., joins.

Author: O'brien

[ 497 Pa. Page 191]


Appellant comes before this Court for the third time, seeking final review of ineffectiveness claims which have been deemed to be waived by this Court previously.

On June 28, 1974, a jury found appellant guilty of murder of the first degree. Appellant's privately retained counsel filed post-trial motions which were subsequently denied. After sentencing, appellant's representation was conducted by the Public Defender of Chester County, who filed a direct appeal to this Court. On appeal, appellant asserted that the evidence was insufficient to support a conviction of carrying a firearm without a license, and that the charge to the jury was inadequate. We agreed as to appellant's initial claim and reversed his firearms conviction. However, we refused to reach the merits of his second claim because it was not timely raised at trial and was therefore not preserved for appellate review. See Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975).

Appellant acquired new counsel and sought post-conviction relief,*fn1 alleging that his trial counsel was ineffective. At a hearing on the allegations of ineffectiveness, appellant and his trial attorney testified concerning various aspects of the trial. Unfortunately, appellant neglected to allege the ineffectiveness of his direct appeal counsel. Consequently, the PCHA hearing court found all grounds of ineffectiveness

[ 497 Pa. Page 192]

    to be waived. Relying upon 19 P.S. ยง 1180-4(c), the PCHA judge noted:

"[S]ince defendant was represented on direct appeal by counsel other than trial counsel, there was created a rebuttable presumption that the failure to raise the issue of ineffective assistance of counsel on direct appeal was 'knowing and understanding.'"

The Court held that appellant introduced no evidence of extraordinary circumstances which prevented him from raising these claims on direct appeal. Those contentions were therefore waived. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). We affirmed the decision of the PCHA court that appellant failed to rebut the presumption that his failure to raise these issues on direct appeal was knowing and voluntary. Commonwealth v. McNeil, 479 Pa. 382, 388 A.2d 707 (1978).

Appellant thereafter filed a second PCHA petition, reasserting the ineffectiveness of trial counsel, and adding allegations of the ineffectiveness of appellate counsel for not attacking the stewardship of trial counsel on direct appeal, and the ineffectiveness of his first PCHA counsel for failing to argue the ineffectiveness of appellate counsel in the initial PCHA petition.

A second PCHA hearing was held on September 11, 1979. Appellant presented the testimony of his first PCHA attorney, who stated that he was unaware of the need to rebut a presumption of waiver. Appellant did not offer the testimony of his appellate counsel. Again, the PCHA court denied relief. This appeal followed.

The issue before us is whether appellant rebutted the presumption that the failure to raise his claim of ineffectiveness of trial counsel on direct appeal was a knowing and voluntary decision. Appellant offered his own testimony that his appellate counsel did not inform him that the ineffectiveness issue would be waived unless raised on direct appeal. However, the PCHA Court ruled that appellant failed to sustain his burden of proof on this issue and that trial counsel's ineffectiveness was still waived.

[ 497 Pa. Page 193]

For the foregoing reasons, we hold that appellant did rebut presumption of waiver and we will consequently address, for the first time, the merits of appellant's claims.

The PCHA provides:

"(b) For the purposes of this Act, an issue is waived if:

"(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised . . . on appeal . . .; and

"(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his ...

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