June 22, 1984
COMMONWEALTH OF PENNSYLVANIA
ANDREW C. HUGHES, APPELLANT
No. 00856 PGH 82, Appeal from the PCHA March 16, 1982 in the Court of Common Pleas of Cambria County, Criminal Division, at No. C-1192, 1975.
Before Cavanaugh, Wickersham, and Hoffman, JJ.
IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA VS ANDREW C. HUGHES, Petitioner.
No. C-1192, 1975 Murder in the 3rd Degree
POST CONVICTION PROCEEDINGS INEFFECTIVE COUNSEL
Opinion AND ORDER
SUMMARY OF FACTS
Andrew C. Hughes was found guilty by a jury of third degree murder on February 26, 1976. Post-trial Motions were filed, argued and denied. He was sentenced on September 29, 1976 to a 10 to 20 year term of imprisonment. He appealed his sentence to the Pennsylvania Supreme Court and on July 26, 1978 his sentence was affirmed. Com. v. Hughes, 389 A.2d 1081, 1978. On December 30, 1980, petitioner filed for Post Conviction relief. Counsel was appointed by this court to aid petitioner and on November 13, 1981, a hearing was held before this Court. Defendant's effective date of sentence was August 15, 1978.
FINDINGS OF FACT
1. Petitioner is properly before this Court under 19 Pa CSA § 1180.3. He has been convicted of third degree murder by a jury, is serving a 10 to 20 year sentence in the State Correctional Institution at Huntingdon, Pa. and he alleges that his sentence resulted from the denial of his constitutional rights to representation by competent counsel.
2. Petitioner properly filed the petition required.
3. Petitioner was granted a full and fair hearing on his petition.
4. Petitioner alleges at least 16 issues in support of his claim for post conviction relief. Every issue raised by petitioner challenges the effectiveness of his representation by trial counsel and the ineffectiveness of his appellate counsel for failing to raise trial counsel's ineffectiveness.
5. Petitioner was represented at trial by two members of the County Public Defender's Office.
6. Petitioner retained private counsel for sentencing and direct appeal. Such counsel was not a member of the County Public Defender Staff.
7. Petitioner was given court appointed counsel for his post conviction hearing. Such counsel was not a member of the County Public Defender Staff.
8. Petitioner alleges his trial counsel was ineffective for failing to challenge the Court's reconstructions of the trial transcript, for failing to obtain an admissible expert opinion as to petitioner's sanity, for failing through various witnesses to establish the violent propensity of the victim, for failing to impeach prosecution witnesses, for failing to challenge the charge and the sentence of the trial court.
9. Petitioner alleges his appellate counsel was ineffective for failing to allege trial counsel's ineffectiveness.
ConclusionS OF LAW
1. Where the petitioner made no claim of alleged ineffectiveness of trial counsel on direct appeal, there was a rebuttable presumption, that the failure was knowing and understanding. 19 P.S. 1180-4(c) and Com. v. Gans, 412 A 2d 642, 1979.
2. Ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant. Com. v. Hubbard, 372 A.2d 687, 1977.
3. There was no proof or testimony in his trial or at the hearing that appellate counsel was ineffective in not raising the issue of trial counsel's ineffectiveness and petitioner has the burden of proof. Com. v. Conley, 243 Pa. 295, 365 A.2d 858.
4. The issue of trial counsels' ineffectiveness has been presumptively waived. Com. v. Nardi 482 Pa. 578, 394 A.2d 473(1978).
5. The only manner by which the petitioner could have revived, or "bootstrapped", this claim for review at this time, was to show appellate counsel was ineffective in not raising this issue at the first opportunity. Com. v. May, 476 Pa. 385, 382 A.2d 1223(1978).
6. Nevertheless, this court has carefully reviewed the record of the trial and the file on the petitioner. The standard in Pennsylvania by which a claim of ineffective assistance of counsel is to be measured is a high standard. Ineffective representation means representation so lacking in competence that it becomes the duty of the court or prosecution to correct it so as to prevent the mockery of justice.
That counsel was not ineffective for failing to find an admissible expert opinion on petitioner's sanity, when there was no evidence or reason to believe that an expert could substantiate such a defense: Com v. Austin, 417 A.2d 1220, 1980. Com v. Hughes, 389 A.2d 1081, 1978.
That counsel was not ineffective for failing to introduce deceased's prior criminal record and violent propensity: This court has reviewed the criminal record and the trial transcripts in regard to this issue. The trial judge refused to admit such testimony and evidence over defense objections and refused to charge on self defense. The Supreme Court affirmed.
That counsel was not ineffective in failing to impeach every prosecution witness on inconsistencies: It is highly unlikely that the result would have been different if the witnesses were impeached on collateral matters. The mere fact that the petitioner is of the opinion that his trial was improperly conducted by his counsel does not constitute grounds for relief. Com. v. Bennett, 86 Dauph 2, 1966.
That counsel was not ineffective for failing to call witnesses absent some positive demonstration that the witnesses testimony would have been admissible and helpful: Com. v. Helvey 420 A.2d 631, 1980.
Petitioner alleges sentencing counsel, also appellate counsel, should have challenged the maximum sentence, and the lack of reasons for the sentence and failure to review the transcript. Sentencing counsel was appellate counsel. In reviewing the record and in ruling on petitioner's motion for reconsideration, we found no abuse of discretion by the court in sentencing petitioner to the maximum sentence because of the nature of the crime, as stated in the transcript of sentencing at p. 17.
7. Petitioner has not established his burden of proving the ineffectiveness of either trial counsel or appellate counsel. Appellate counsel was personally retained by petitioner and there is no evidence to show he was anything but fair and effective. Dissatisfaction with results will not independently support a claim of ineffective assistance of counsel.
Therefore, we make the following:
AND NOW, this 16 day of March, 1982, after full consideration and review, petitioner's claim for post conviction relief on the grounds of ineffective assistance of counsel is dismissed.
This order constitutes a final judgment for purposes of review.
BY THE COURT: McWILLIAMS P.J.
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