NO. 2941 OCTOBER TERM, 1978, Appeal from order entered November 13, 1978 in the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, August Term, 1976, Nos. 393-395, denying defendant's Petition for Relief under the Post Conviction Hearing Act.
Richard J. Conn, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
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Appellant was found guilty in the Municipal Court of Philadelphia County, of possession of a controlled substance, possession of a controlled substance with the intent to deliver it, and several weapons offenses. On appeal to the Court of Common Pleas of Philadelphia County, Appellant on September 7, 1976, was again found guilty at a bench trial of the crimes involving controlled substances,*fn1 but post trial, Appellant's motion in arrest of judgment was granted as to the conviction of possession with the intent to deliver.
On the same day, Appellant was sentenced upon the conviction of simple possession to a term of imprisonment of not less than three nor more than twelve months. Appellant took no direct appeal, but on December 15, 1976 filed a pro se petition pursuant to the Post Conviction Hearing Act ("PCHA").*fn2 New counsel was appointed for Appellant and filed an amended PCHA petition. Both such petitions assert the ineffectiveness of Appellant's trial counsel in several respects. More specifically, Appellant asserted in the PCHA petitions that (1) his privately retained counsel failed to appear to assist in Appellant's defense at trial in the Municipal Court but rather dispatched an associate to represent Appellant who was unprepared and failed to produce certain items of physical evidence at the trial which were in counsel's possession; (2) his counsel at trial in the Court of Common Pleas failed to produce the same physical evidence which would have "materially aided" Appellant in his defense; (3) his counsel at trial in the Court of Common Pleas failed to cross examine the arresting officers upon an asserted
[ 294 Pa. Super. Page 533]
inconsistency between their testimony at trial in the Municipal Court and in the Court of Common Pleas; (4) his trial counsel failed to interview a witness who "may have been able to present exculpatory evidence"; and (5) counsel, contrary to Appellant's expressed desire, failed to file a direct appeal following Appellant's conviction in the Court of Common Pleas. Two evidentiary hearings were held upon the petitions and thereafter the hearing judge, by opinion and order, denied Appellant relief.
On appeal, Appellant raises five issues, again contending that his trial counsel was ineffective (1) in failing to file a direct appeal following Appellant's conviction; (2) in failing to produce or introduce at trial exculpatory physical evidence in counsel's possession; (3) in failing to produce an exculpatory witness, or asking for a continuance in order to produce such witness; and (4) in failing to properly cross-examine the arresting officers upon allegedly inconsistent testimony. In addition, Appellant asserts that his counsel was ineffective for not permitting Appellant to testify in his own defense at trial in the Court of Common Pleas.
As is apparent from our earlier recitation of the essential allegations contained in the two PCHA petitions, and our review of the petitions themselves, Appellant never alleged that trial counsel was ineffective for failing to call Appellant as a witness in his defense. Nor does the record of the PCHA evidentiary hearings reveal a single word of testimony or argument on the subject. Neither we nor our trial courts may consider issues not presented in properly filed PCHA petitions, Commonwealth v. Zillgitt, 489 Pa. 189, 413 A.2d 1078 (1980), and as the court below, we do not consider the issue.
It will also be recalled that Appellant asserted that his counsel was ineffective in failing to cross-examine the arresting officers upon alleged inconsistencies in their testimony as given at trial in the Municipal Court on the one hand, and at trial in the Court of Common Pleas on the other. Although this allegation appears in both PCHA
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petitions, Appellant offered no testimony, other evidence or argument concerning the matter at the PCHA hearings. The burden of establishing the grounds for PCHA relief is upon the petitioner, Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944, 945 (1981) quoting Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976), and the failure to present testimony or other evidence on the issue at an evidentiary hearing constitutes an abandonment of such grounds as a basis for relief. Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936, 937 (1981). Again, we do not consider the issue.
Appellant has preserved the three remaining issues and we shall examine them in turn.
Appellant contends that immediately following his conviction, he asked his trial counsel to file a direct appeal, and counsel agreed to do so. Nevertheless, Appellant continues, trial counsel failed to file an appeal. At the PCHA hearings, Appellant testified that it was essential that an appeal be filed as the conviction constituted a violation of federal parole which, if parole were revoked, would and apparently did subject Appellant to further incarceration in a federal institution.
At the evidentiary hearings, trial counsel, in response to questions on the subject by Appellant's PCHA counsel, summarized his contrary recollection of the event:
And sir, did you or Mr. Stokes discuss taking an appeal from Judge Jenkins' ruling?
[BY APPELLANT'S TRIAL COUNSEL]
A Well, I must explain to you what occurred in Judge Jenkins' courtroom on that day. The matter was tried before Judge Jenkins on a waiver of a jury trial. A police officer testified, he was cross-examined. ...