No. 2373 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, Lancaster County, at No. 1875 of 1977.
Richard A. Umbenhauer, Lancaster, for appellant.
Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.
Cercone, President Judge, and Wickersham and Lipez, JJ.
[ 300 Pa. Super. Page 541]
This is an appeal from an order dismissing without a hearing appellant's pro se petition requesting relief under the Post Conviction Hearing Act (PCHA).*fn1
On January 26, 1978 appellant was found guilty by a jury of his peers of criminal attempt to commit first degree murder. He was represented at trial by one Harold W. Budding. Post-verdict motions were timely filed by appellant's trial counsel. Appellant then filed a pro se PCHA petition, which was dismissed by the court without a hearing, but appellant was appointed new counsel, one Robert A. Longo, who was directed by the court to aid appellant in developing his ineffectiveness claim. Subsequently, with the advice of his new counsel, appellant requested and the court granted him the right to withdraw the post-verdict motions filed by trial counsel. Thereafter, appellant was sentenced to four to eight years imprisonment. Following the imposition of sentence appellant filed a second PCHA
[ 300 Pa. Super. Page 542]
petition pro se. Once again the court appointed Robert Longo to aid appellant. The court also issued a rule to show cause why a hearing should not be held on appellant's petition. The Commonwealth answered and the court dismissed appellant's petition without a hearing; no amended petition had been filed. Appellant took no appeal from the dismissal of his second PCHA petition. Appellant later filed a third pro se PCHA petition, alleging with some specificity the ineffectiveness of both Budding and Longo, and requesting the appointment of counsel to aid him in ferretting out prior counsels' ineffectiveness. The court did not comply with appellant's request but dismissed the petition without a hearing. Appellant filed a timely pro se appeal to this Court, and we appointed appellant's present counsel.
Appellant now argues that both Mr. Budding and Mr. Longo ineffectively represented him, that he has not knowingly and intelligently waived the merits of his ineffectiveness claims, and that it was error for the lower court to dismiss his third pro se PCHA petition without first appointing counsel and conducting a hearing. Our polestar and guiding light in reviewing claims of ineffective assistance of counsel is the time honored case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where the Supreme Court stated:
Counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests.
Id., 429 Pa. at 604, 235 A.2d at 352. The Supreme Court elaborated the Maroney standard in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). It stated there:
In Maroney we noted that "a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized." Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. Because counsel does not forego an alternative which ...