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filed: January 14, 1983.


No. 601 Philadelphia, 1981, Appeal from the Order entered February 20, 1981, in the Court of Common Pleas of Northampton County, Pennsylvania, Criminal Division, No. 666 of 1977.


George J. Blasco, Easton, for appellant.

Donald Corriere, District Attorney, Easton, for Commonwealth, appellee.

Spaeth, Rowley and Lipez,*fn* JJ.

Author: Rowley

[ 309 Pa. Super. Page 269]

This is an appeal from an order of the trial court denying appellant's claim for relief pursuant to the Post Conviction Hearing Act (hereafter "PCHA").*fn1

Appellant was tried before a jury and on September 13, 1977, was found guilty of third degree murder in the shooting death of one Stewart Beatty. This court affirmed the conviction on direct appeal, Commonwealth v. Costanzo, 269 Pa. Super. 413, 410 A.2d 324 (1979). The Pennsylvania Supreme Court denied appellant's petition for allowance of appeal on January 21, 1980. Thereafter, on July 30, 1980, appellant filed a pro se PCHA petition raising claims of ineffectiveness of both trial counsel and appellate counsel. New counsel was appointed to represent appellant. After a hearing at which both trial and appellate counsel testified, the PCHA court concluded that neither counsel had been ineffective and denied the requested relief. This appeal followed. We affirm.

[ 309 Pa. Super. Page 270]

Appellant has been represented by four different counsel at various stages of these proceedings: preliminary hearing, trial, direct appeal and post conviction. In his brief to this court appellant states the sole question presented as follows:

Whether trial counsel was ineffective by his failure to pursue pre-trial motions challenging the warrantless arrest of his client or the warrantless search of his dwelling and seizure of evidence used against him. (Emphasis added.)

In the absence of a claim that appellate counsel was ineffective we may find that the claim as to trial counsel's ineffectiveness has been waived because:

[I]neffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977).

However, in this case appellate counsel's alleged ineffectiveness was fully litigated before the PCHA court: it was raised in appellant's pro se petition, brought to the attention of the court at the outset of the PCHA hearing, appellate counsel testified at some length, and both appellant and the Commonwealth, in their briefs to this court, have argued the appeal on its merits without raising any claim of waiver. While we may consider the waiver issue sua sponte, Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977), Commonwealth v. Harper, 292 Pa. Super. 192, 436 A.2d 1217 (1981), under the present circumstances we attribute the narrowness of the question presented by appellant to clerical error or oversight rather than an intentional abandonment of a claim of error. Because we conclude that appellant has challenged the effectiveness of appellate counsel and preserved the issue for review, we will consider the merits of appellant's claim. See Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980) and

[ 309 Pa. Super. Page 271]

    make an inquiry into the basis for the post-trial counsel's decision not to pursue the matter. Thus, the starting point of our inquiry is whether there were reasonable grounds upon which to advance the . . . claims which were not advanced. (Emphasis in the original.)

Where, as here, appellant asserts that appellate counsel was ineffective for failure to raise trial counsel's ineffectiveness,

     the threshold question is whether the allegations of trial counsel's ineffectiveness would have been frivolous. If so, we need engage no further in exploration of the basis of post-conviction counsel's omission. Id., 472 Pa. at 281, 372 A.2d at 697.

In applying this principle to claims of successively ineffective counsel, we are guided by the Hubbard Court's method of analysis. There, the court undertook an examination of trial counsel's conduct to ascertain whether the actions omitted by trial counsel were "arguably important and had a chance of succeeding." Id., 472 Pa. at 285, 372 A.2d at 699. Only if we conclude that the omissions were important and stood a chance of succeeding are we required to inquire into trial counsel's reasons for failing to act. If there were no reasonable basis for trial counsel's failure, we would then apply the two-step analysis to appellate counsel's course of conduct. Id. Finally, although "the failure to file a suppression motion may be evidence of ineffective assistance of counsel," if the basis for the motion is meritless counsel cannot be deemed ineffective. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979).

Upon examining the record in light of the foregoing standards, we find that the omissions by trial counsel, about which appellant now complains, were not shown to have "a chance of succeeding." Thus, any claim on direct appeal that trial counsel had been ineffective would have been frivolous. Appellate counsel could not, therefore, have been ineffective on the grounds here asserted by appellant. We therefore affirm the order of the trial court.

[ 309 Pa. Super. Page 273]

First, there is no reasonable basis upon which trial counsel could have attacked appellant's arrest as being without probable cause. Appellant summoned the police to his home, admitted that he shot the victim and, upon request, delivered to a police officer the weapon he had used, a rifle. Appellant consistently claimed that he had used the rifle only in self-defense, but this self-serving statement, without more, does not eliminate the existence of probable cause. On direct appeal, Judge Wieand made an observation as to the jury's ability to infer certain facts which we find pertinent in this context as well.

[T]he jury could find that the rifle did not belong in the basement and that its presence at the time of the shooting was not consistent with its use to protect against an unexpected knife attack. Commonwealth v. Costanzo, 269 Super. at 418, 410 A.2d at 326.

There is no reason that the police officer could not draw these same inferences. The standard applicable to a probable cause determination is, and must be, less strict than the standard of proof beyond a reasonable doubt by which a jury must abide. The PCHA court properly concluded that sufficient facts were available to the arresting officer to justify a man of reasonable caution to believe that a crime had been committed and that the appellant was the probable perpetrator. Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119, 123 (1974). Appellant's argument to the contrary is totally without merit. Thus post-trial counsel reasonably refrained from alleging trial counsel's ineffectiveness on this ground. Appellate counsel was therefore not ineffective.

Second, we likewise cannot agree that trial counsel had any reasonable basis for challenging the searches and seizures which took place in appellant's home subsequent to his arrest.*fn2 At the PCHA hearing trial counsel testified that, after the preliminary hearing, he had interviewed

[ 309 Pa. Super. Page 274]

    appellant, appellant's wife, prior counsel and the police. He further stated that he had concluded on the basis of the information given him that the police had obtained a valid consent to perform the searches and seize the evidence. Appellant put on no witnesses to challenge trial counsel's testimony and conclusion. His testimony stands essentially unrebutted upon the PCHA record.*fn3 This testimony fully warranted the conclusion reached by the PCHA court that appellant failed to carry his burden of showing that a motion to suppress stood "a chance of success" because, of course, consent is an exception to the warrant requirement. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, appellate counsel was, on this record, not shown to have been unreasonable in refraining from alleging trial counsel's ineffectiveness on this ground as well.

Because the omissions of trial counsel were not shown to have any chance of succeeding, appellate counsel had no reasonable grounds upon which to assert trial counsel's ineffectiveness upon appeal. Appellate claims as to trial counsel's ineffectiveness on these grounds would have been frivolous. Therefore, the claim that appellate counsel was ineffective is without merit. We need not inquire into appellate counsel's reasons for failing to raise these issues on appeal for counsel cannot be found ineffective for failure to raise meritless claims. Commonwealth v. Hubbard, 472 Pa. at 278, 372 A.2d at 696.

*fn* This case was reassigned to the above-named panel on October 21, 1982.

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