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COMMONWEALTH PENNSYLVANIA v. EDWARD C. SILVIS (01/12/82)

submitted: January 12, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD C. SILVIS, APPELLANT



NO. 646 PITTSBURGH, 1981, Appeal from the PCHA Order of April 30, 1981 in the Court of Common Pleas of Forest County, Criminal Division, at No. 7 March Term, 1970.

COUNSEL

Joseph C. Barnhart, Tionesta, for appellant.

Paul H. Millin, District Attorney, Tionesta, for Commonwealth, appellee.

Hester, Beck and Van der Voort, JJ.

Author: Beck

[ 307 Pa. Super. Page 76]

Appellant Edward C. Silvis, convicted of first degree murder and sentenced to life imprisonment, has presented his third petition for Post Conviction Relief. The Supreme Court, on direct appeal, affirmed his conviction and sentence. Commonwealth v. Silvis, 445 Pa. 235, 284 A.2d 740 (1971). The Court of Common Pleas has dismissed all three of his petitions for Post Conviction Relief. The Supreme

[ 307 Pa. Super. Page 77]

Court affirmed denial of relief in the second. Commonwealth v. Silvis, 458 Pa. 653, 327 A.2d 871 (1974). The third of these three dismissals is now appealed.

The first issue before the Court in this instance is whether failure to raise the allegations in the present petition were waived by failure to raise them in appellant's prior appeals and petitions. The Post Conviction Hearing Act, 19 Pa.C.S. 1180-4(b) stipulates that any issue which is not presented either on direct appeal or in a previous petition is deemed waived, absent proof of extraordinary circumstances which justify the failure. Ineffective assistance of counsel would constitute "extraordinary circumstances" sufficient to preclude finding of a waiver. Com. v. Sisak, 249 Pa. Super. 159, 375 A.2d 808 (1977); Com. v. Ferguson, 257 Pa. Super. 497, 390 A.2d 1347 (1978). Silvis, now represented by his fourth attorney in these matters, is claiming ineffectiveness on the part of his trial counsel, appellate counsel, and evidentiary counsel.

Claims of ineffective assistance of counsel are subject to the standard set out in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967); whether a "particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record." (Emphasis in the original). Attacks on counsel may not be used to circumvent the consequences of failing to preserve issues for appeal. Com. v. Hubbard, 472 Pa. 259, 279, 372 A.2d 687, 696 (note 8) (1977). Counsel will not be deemed ineffective for failing to raise frivolous issues, or advance baseless claims. Com. v. Shore, 487 Pa. 534, 537, 410 A.2d 740, 741-2 (1980); Com. v. Johnson, 489 Pa. 129, 133, 413 A.2d 1047, 1049 (1980).

Silvis, in the instant appeal, raises three claims. The first is that the trial court erred by refusing to grant his request for private individual voir dire of prospective jurors. Pa.R.Cr.P. 1106(e) requires individual voir dire in capital

[ 307 Pa. Super. Page 78]

    cases. Subsection (1)(A) provides that "Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors." (Emphasis added). Here the trial judge did conduct individual voir dire, albeit within the presence of other jurors. The rule itself clearly allows the trial court's discretion in deciding whether to question individual jurors beyond the hearing and presence of the others. The conduct of voir dire examination rests in the sound discretion of the trial judge, so long as it is done within the applicable procedural rules, and his decision will not be reversed absent palpable error. Com. v. Fulton, 271 Pa. Super. 430, 432, 413 A.2d 742, 743 (1979); Com. v. Stanton, 269 Pa. Super. 305, 308, 409 A.2d 901, 903 (1979); Com. v. Boone, 286 Pa. Super. 384, 388, 428 A.2d 1382, 1384 (1981). Here, ...


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