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filed: April 30, 1982.


No. 2129 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 390, 391 August Term, 1965.


David L. Pollack, Philadelphia, for appellant.

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

Spaeth, Wieand and Johnson, JJ. Spaeth, J., files a concurring opinion. Johnson, J., files a dissenting opinion.

Author: Wieand

[ 299 Pa. Super. Page 69]

This is an appeal from an order dismissing Lloyd Parker's P.C.H.A. petition without hearing and without any consideration of the merits of the issues raised therein. The petition is the fourth P.C.H.A. petition filed by appellant following his 1966 convictions for robbery and carrying a concealed deadly weapon.*fn1 Appellant contends that trial counsel and all subsequent counsel were ineffective for failing to assert a claim that the victim's identification testimony was tainted by a suggestive pre-trial identification procedure. We are constrained to reverse and remand for an evidentiary

[ 299 Pa. Super. Page 70]

    hearing and consideration of the issue which appellant has raised.

The trial court dismissed appellant's P.C.H.A. petition without considering the merits of appellant's averment because it was of the opinion that the suggestiveness of the pre-trial identification procedure had previously been litigated. Our review of the record does not support this conclusion. It is true that appellant previously contended that a one-on-one confrontation with the victim three days after commission of the robbery had been invalid because he had not then been represented by counsel. It is also true that when an issue has been heard and decided, re-litigation may not be achieved by advancing a different theory. Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972). However, in Commonwealth v. Barnes, 248 Pa. Superior Ct. 579, 375 A.2d 392 (1977), this Court held that the issues of suggestiveness of pre-trial lineup and failure to be represented by counsel at such lineup are separate issues, and that the prior litigation of one is not a bar to a claim that counsel was ineffective for failing to raise the other.

Moreover, by asserting the ineffectiveness of trial counsel and all subsequent counsel for failing to raise the issue of the suggestiveness of the pre-trial one-on-one confrontation, appellant has alleged "extraordinary circumstances" which justify the failure to raise the issue in prior P.C.H.A. petitions. Thus, the issue has not been waived. Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980).

Substantively, we are unable to resolve appellant's claim on the present state of the record. When appellant was displayed one-on-one to the victim three days after the robbery, she was unable to identify him. At the preliminary hearing, however, she unequivocally identified appellant as one of the robbers, and this testimony was repeated during appellant's trial. Under these circumstances, appellant's contention appears to have arguable merit. At least, a contrary finding cannot be made summarily.

[ 299 Pa. Super. Page 71]

For these reasons we reverse the order of the court below and remand for an evidentiary hearing at which the merits of the issues raised in appellant's P.C.H.A. petition should be considered.*fn2

[ 299 Pa. Super. Page 72]

Reversed and remanded for proceedings consistent with the foregoing opinion.

SPAETH, Judge, concurring:

I agree that the lower court's order should be reversed and the case remanded for an evidentiary hearing at which the merits of the issues raised in appellant's PCHA petition may be considered. I write separately because of Judge WIEAND's comments in footnote 2 of his opinion.

It is indeed "vexing" that we are reviewing appellant's fourth PCHA petition and I agree with Judge WIEAND that post-conviction procedures have become too complex and therefore often unduly protracted. A review of those procedures could do no harm, and might prove valuable. As part of that review, I too should like to see a consideration of whether it would not be better to return to the doctrine of "fundamental error," abolished by Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Beyond this, I am unable to agree with Judge WIEAND. Of course it is "offensive" "[t]o permit unlimited and largely unfounded claims of ineffective assistance [of counsel]." But the fact is that all too often persons accused of crime do indeed receive ineffective assistance of counsel; their claims are by no means "unfounded." See, e.g., Commonwealth v. Hoetzel, 284 Pa. Superior Ct. 623, 426 A.2d 669 (1981) (failure to request charge relating to constructive possession and failure to object to erroneous simple possession charge); Commonwealth v. Candia, 286 Pa. Superior Ct. 282, 428 A.2d 993 (1981) ("grossly inappropriate" questioning of defendant by defense counsel opened door and subjected defendant to

[ 299 Pa. Super. Page 73]

    ridicule regarding past drug-related activities); Commonwealth v. Stiefel, 286 Pa. Superior Ct. 259, 428 A.2d 981 (1981) (failure to produce crucial witnesses); Commonwealth v. Lennox, 286 Pa. Superior Ct. 41, 428 A.2d 228 (1981) (filing of boiler-plate post-verdict motions resulting in waiver); Commonwealth v. Russo, 283 Pa. Superior Ct. 421, 424 A.2d 536 (1980) (failure to object to prosecutor's open challenge to defendant to take witness stand); Commonwealth v. Zaborowski, 283 Pa. Superior Ct. 132, 423 A.2d 1023 (1980) (failure to file amended PCHA petition or brief); Commonwealth v. Parker, 281 Pa. Superior Ct. 360, 422 A.2d 509 (1980) (failure to file brief as ordered by Superior Court); Commonwealth v. Johnson, 280 Pa. Superior Ct. 309, 421 A.2d 737 (1980) (failure to file post-verdict motions properly and to protect defendant's right of appeal). The limitations suggested by Judge WIEAND would, I fear, often result in excusing careless counsel. Our time might be saved. But justice would not be served.

JOHNSON, Judge, dissenting:

When confronted with a claim of ineffective assistance of counsel this court undertakes a two-step analysis. First, we must determine whether the issue underlying the claim has arguable merit. If we find such arguable merit, then we inquire whether there was a reasonable basis for counsel's action or inaction. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Jennings, 285 Pa. Super.Ct. 295, 427 A.2d 231 (1981). In this case the claim is that counsel was ineffective for not "raising the issue" of a one-on-one confrontation between the victim and the defendant three days after the defendant robbed the victim at gunpoint. The police brought two suspects in a car to the victim's store and asked her if they were the robbers. The victim responded that she couldn't be sure. At the preliminary hearing she did identify the defendant. At trial she testified that she recognized him as the robber because he had been a customer.

Firstly, at trial the jury knew of her earlier equivocation, and could therefore accord to her identification of the defendant

[ 299 Pa. Super. Page 74]

    what weight it chose. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Boone, 287 Pa. Super.Ct. 1, 429 A.2d 689 (1981). Secondly, the identification of the defendant at the preliminary hearing had a basis independent of any recognition tainted by the earlier confrontation. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971); Commonwealth v. Townsend, 280 Pa. Super.Ct. 155, 421 A.2d 452 (1980); Commonwealth v. Perdie, 249 Pa. Super.Ct. 406, 378 A.2d 359 (1977). Thirdly, two customers in the store also identified the defendant.

The test of the validity of the pre-trial confrontation is whether, considering the totality of the circumstances, the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973).

Based on the totality of the circumstances surrounding this case, there would have been no due process violation found and hence counsel was not ineffective for not "raising the issue."

I therefore would affirm the denial of the PCHA petition.

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