No. 1166 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Criminal, of Philadelphia County, No. 16-19, March Term, 1970
Michael J. Byrne, Jr., Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, and Wieand and Montemuro, JJ. Wieand, J., files a concurring statement.
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This is an appeal from an order denying appellant's petition filed under the Post Conviction Hearing Act, 19 P.S. §§ 1180-1 et seq. (hereafter PCHA)*fn1 raising various allegations of ineffectiveness of counsel. Appellant also raised the question of legality of sentence for the first time in a supplemental brief to this appeal. We affirm the order of the trial court denying relief under the PCHA, and vacate one of appellant's sentences on the basis of illegality.
The pertinent facts are as follows:
Appellant was arrested on January 16, 1970, and in due course indicted as of Bill Nos. 16-19, March Term, 1970, charging him with murder, aggravated robbery, conspiracy and weapons offenses.
Trial was held on October 27, 1971, before the Honorable James T. McDermott of the Court of Common Pleas of Philadelphia County, sitting with a jury. The jury returned verdicts of guilty on all Bills on November 2, 1971. Post verdict motions were denied on May 15, 1973. Thomas was sentenced to life imprisonment for murder in the first degree and a consecutive twenty year sentence was imposed for aggravated robbery.
Represented by new counsel, appellant took a direct appeal to the Supreme Court of Pennsylvania, which affirmed the lower court's decision. Commonwealth v. Thomas, 459 Pa. 371,
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A.2d 277 (1974).*fn2 Petition for reargument was denied on February 19, 1975. Turning to the federal courts, appellant filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania on July 23, 1975. The Honorable Alfred L. Luongo denied relief without opinion on August 27, 1975. United States ex rel. Thomas v. Cuyler, Docket No. 752034 (E.D.Pa. 1977). The United States Court of Appeals for the Third Circuit affirmed. United States ex rel. Thomas v. Cuyler, 548 F.2d 460 (3d Cir. 1977).
On July 6, 1977, appellant filed a pro se petition in the Court of Common Pleas of Philadelphia County seeking PCHA relief. Counsel was appointed and an amended petition was filed. On March 19, 1982, after a hearing, the Honorable Edward J. Blake denied appellant's petition for relief, finding waiver; or, in the alternative, that appellant's claims were meritless. This is an appeal from that order.
Appellant is claiming ineffectiveness of trial counsel in that he: (1) failed to object to certain allegedly improper remarks made by the prosecution; (2) allowed the prosecution to cross-examine its own witness; (3) elicited uncontradicted hearsay evidence.
However, ineffectiveness of trial counsel was not raised by newly appointed counsel on direct appeal. Consequently, the issue of trial counsel's ineffectiveness is waived. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
With respect to appellate counsel, appellant contends that his representation also was ineffective, solely because he failed to raise the issue of trial counsel's ineffectiveness.
In evaluating such a claim, "the threshold question is whether the allegations of trial counsel's ineffectiveness would have been frivolous. If so, we need engage no
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further in exploration of the basis of post-trial counsel's omission." Commonwealth v. Hubbard, supra at 472 Pa. 281, 372 A.2d at 697.
We now turn to an evaluation of the three allegations of trial counsel's ineffectiveness stated above.
On direct appeal, the Pennsylvania Supreme Court examined the alleged impropriety on the part of the prosecution at trial and concluded that reversible error did not occur when the prosecutor referred to the witness and appellant as "bums." The Court also examined appellant's claim that prejudicial error occurred when the prosecution was permitted to impeach one of its own witnesses. On this contention the Court concluded that the prosecution was properly permitted to cross-examine its own witness when the prosecution was surprised by the unexpected contradiction of the witness' prior statements to ...