No. 3596 Philadelphia 1982, APPEAL FROM THE PCHA DECEMBER 16, 1982 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 208-212 MAY TERM 1977
Norris E. Gelman, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cirillo, Beck and Johnson, JJ.
[ 328 Pa. Super. Page 470]
This is an appeal from a denial of relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551, in which appellant claims he was denied full appellate rights and the right to the representation of competent counsel on a prior direct appeal from judgment of sentence.
On July 21, 1977, appellant Rawls waived a jury and proceeded to trial in the Philadelphia County Court of Common Pleas on charges of second-degree murder, robbery, burglary, and conspiracy. Rawls was convicted and sentenced to life imprisonment for murder, ten to twenty years imprisonment for robbery, ten to twenty years for burglary, and five to ten years for conspiracy, all sentences
[ 328 Pa. Super. Page 471]
to run concurrently. He filed a direct appeal to the Supreme Court, which placed the appeal on the Superior Court Special Transfer Docket. The Superior Court affirmed the judgment of sentence in Commonwealth v. Rawls, 270 Pa. Super. 432, 411 A.2d 796 (1979). Neither Rawls nor his appellate counsel sought allocatur in the Supreme Court.
On July 14, 1981, Rawls filed a counseled petition under the PCHA. After an evidentiary hearing, the PCHA court, Blake, J., denied relief in an opinion and order dated December 16, 1982.
Appellant first argues that his court-appointed trial/appellate counsel abandoned him after this Court affirmed the judgment of sentence on direct appeal, and that therefore he was denied his right to seek further appellate review in the Supreme Court of Pennsylvania. After the Superior Court denied relief, counsel effectively withdrew from the case, apparently in the mistaken belief that he had no duty to continue representing Rawls. If Rawls indeed wished to appeal our order, counsel's failure to continue representation was improper under the mandate of Commonwealth v. Daniels, 491 Pa. 289, 420 A.2d 1323 (1980).
However, Rawls has never maintained that he wished to appeal our order to the Supreme Court. Instead, he now seeks the right to file a petition for allowance of appeal to the Supreme Court so that he may present two new claims that were not before our Court on the prior direct appeal. These two claims are: 1) that the felony-murder rule as applied to his case is unconstitutional, and 2) that the elements of a jury trial waiver colloquy should be expanded in a homicide case to "inform [the defendant on the] record of the unique powers of a jury in a homicide prosecution in Pennsylvania." Brief for the Appellant at 25. Appellant frames prior counsel's failure to raise these issues in terms of ineffective assistance of counsel, and seeks alternative relief in the form of a new trial.
There is a presumption under the PCHA that appellant's failure to pursue these issues in earlier proceedings was knowing and ...