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filed: March 26, 1982.


No. 381 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Division at Nos. 367-368 January Term, 1954.


Clifford B. Conn, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Popovich and Montgomery, JJ.

Author: Popovich

[ 297 Pa. Super. Page 299]

Appellant, Benjamin Porta, appeals from the lower court's order denying his request for relief under the Post-Conviction Hearing Act*fn1 (PCHA). We affirm.

On May 12, 1954, appellant, while represented by two attorneys appointed by the trial court, pled guilty before a three-judge-panel to the stabbing death of one Ms. Marian Sommerfield. The trial court, after accepting appellant's first-degree murder plea, imposed a sentence of life imprisonment. Appellant took neither a direct appeal from the judgment entered (having filed no post-trial motions) nor did he submit a petition to withdraw his plea. In fact, no legal action was taken by appellant until he filed a pro se PCHA petition on July 26, 1978, in which he alleged the denial of his right to the representation by competent counsel at the preliminary hearing. Per appellant's request, the court appointed counsel who presented an amended PCHA petition on February 21, 1979 contending, in essence, that:

[ 297 Pa. Super. Page 3001]

) appellant was denied his right to representation by counsel at the preliminary hearing; and 2) appellant's confession, obtained during custodial interrogation, was not "given freely and voluntarily[.]" The Commonwealth's response to said petition was that the claims raised therein were either finally litigated or waived. At the hearing, the appellant was the only one to testify and his testimony was restricted to the issues set down in the amended PCHA petition. After the proceeding, the lower court denied appellant's request for relief on October 1, 1980. Because appellant's attorney became associated with the District Attorney's Office of Philadelphia County, he could no longer represent appellant for the purposes of an appeal, so the court appointed new (private) counsel on October 2nd. However, new counsel failed to perfect a timely appeal. As a result of this nonfeasance, the lower court, at a hearing held on December 5, 1980, granted appellant the right to petition this Court for permission to appeal nunc pro tunc, which was granted by a Per Curiam order dated February 9, 1981. Thereafter, the present appeal was filed. It is to be noted that at the December 5th hearing, appellant was asked by the court, given new counsel's ineffectiveness in neglecting to pursue a timely appeal initially, whether "[u]nder those circumstances . . . [he] wish[ed] this same attorney to remain on the case?" (N.T. 12/5/80, at 11) Appellant answered, "Yeah, because I think the reason is no fault of his. It's just circumstances." Ibid.

Before we can reach the merits of appellant's claims, we must determine whether the Commonwealth's assertion that the issues raised in the PCHA petition are waived, and thus not preserved for appellate review, because appellant "did not attempt to withdraw his guilty plea and never filed a direct appeal." See Commonwealth v. Jones, 477 Pa. 266, 267, 383 A.2d 936, 938 (1978) (Logically, the Court needs to determine whether the petitioner has waived his claim prior to reaching the merits); accord Commonwealth v. Holmes, 468 Pa. 409, 414 n. 4, 364 A.2d 259, 262 n. 4 (1976); Commonwealth v. Hayes, 462 Pa. 291, 298, 341 A.2d 85, 89 (1975). In support of such contention, the Commonwealth cites us to 19

[ 297 Pa. Super. Page 301]

P.S. ยง 1180-3(d), 4(b) & (c).*fn2 We find that the PCHA's waiver concept is not applicable to the case at bar.

Initially, we note that it is now settled that the proper procedure for attacking a guilty plea following the entry of judgment of sentence is to file with the trial court which accepted the plea a petition to withdraw the plea. Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977); Commonwealth v. Flynn, 295 Pa. Super. 513, 442 A.2d 256 (1982). However, at the time appellant pled guilty, an accused could challenge his conviction on direct appeal, see Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), or assail the validity of his plea in a collateral proceeding initiated pursuant to a writ of habeas corpus, see Commonwealth v. Melton, 449 Pa. 223, 296 A.2d 727 (1972); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965). Based on the aforesaid, since the PCHA did not become effective until March 1, 1966, and given the fact that there was no waiver doctrine either by statute or by case law before 1966, we find that the waiver concept can bar a claim, raised in a petition under the PCHA, " only if an appellant knowingly and understandingly failed to raise the claim in a proceeding filed after the effective date of the [PCHA]." (Emphasis added) (Citations omitted) Commonwealth v. Goldsmith, 452 Pa. 22, 24, 304 A.2d 478, 480 (1973).

[ 297 Pa. Super. Page 302]

Instantly, the first petition ("proceeding") filed by the appellant after the effective date of the PCHA was the July 26, 1978 pro se petition which was later amended and the denial of which is presently before this Court for review. Thus, we decline to apply the waiver provisions of the PCHA retroactively to bar consideration of claims, presented in the context of a PCHA petition, which could have been raised in a direct appeal or in a habeas corpus petition prior to the PCHA's effective date.*fn3 See Commonwealth v. Melton, 465 Pa. 529, 532 n. 3, 351 A.2d 221, 223 n. 3 (1976); Commonwealth v. Goldsmith, supra; Commonwealth v. Schmidt, 452 Pa. 185, 188 n. 4, 299 A.2d 254, 267 n. 4 (1973); see also Commonwealth v. Fernandez, 487 Pa. 493, 496 n. 6, 410 A.2d 296, 298 n. 6 (1980).

We now turn our attention to the averments raised by the petitioner on appeal. Appellant first argues that he was unconstitutionally denied the right to counsel at his preliminary hearing held on January 3, 1954. Although the United States Supreme Court held in 1970 that a preliminary hearing is a critical stage in a criminal proceeding requiring the presence of counsel unless knowingly waived, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), that decision is not retroactive. Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Commonwealth v. Thomas, 440 Pa. 213, 270 A.2d 211 (1970);

[ 297 Pa. Super. Page 303469]

Pa. 237, 364 A.2d 1357 (1976); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968); Commonwealth v. Wright, 232 Pa. Super. 470, 334 A.2d 766 (1975)." Commonwealth v. Sweitzer, 261 Pa. Super. 183, 189-93, 395 A.2d 1376, 1380-81 (1978).

In light of the preceding, and since it is not the function of this Court to engage in a de novo evaluation of testimony elicited at a PCHA hearing, see Commonwealth v. Clayton, 496 Pa. 492, 437 A.2d 1147 (1981), we are not persuaded by the appellant to disturb the ruling made by the lower court.

Order affirmed.

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