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.
[ 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as an issue at the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represents the defendant.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 ...