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decided: December 28, 1984.


No. 18 E.D. Appeal Docket, 1984, Discretionary appeal from the October 7, 1983 Order of the Superior Court, No. 710, at Philadelphia, 1982 reversing and remanding the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of September Session 1969, Nos. 1532-1535, Pa. Super. , McDermott, J., did not participate in the consideration or decision of this case. Zappala, J., filed an Opinion in Support of Affirmance in which Nix, C.j., and Larsen, J., joined. Flaherty, J., filed an Opinion in Support of Reversal in which Hutchinson and Papadakos, JJ., joined.

Author: Per Curiam

[ 506 Pa. Page 433]


The Court being equally divided, the Order of the Superior Court is affirmed.

[ 506 Pa. Page 438]


ZAPPALA, Justice.

I would affirm on the basis of the Superior Court opinion.


FLAHERTY, Justice.

The trial court determined after reviewing the instant pro se petition that the issues presented in this, Nole's third petition under the Post Conviction Hearing Act, Act of May 13, 1982, P.L. 417, No. 122, § 2, 42 Pa.C.S.A. § 9541,

[ 506 Pa. Page 434]

(hereinafter PCHA), had been either finally litigated or waived and thus were not cognizable under the Act and accordingly dismissed the petition. The Superior Court's order reverses the trial court's dismissal of this petition and remands for appointment of counsel to aid Nole. Nole's pro se petition raises two issues: "Petitioner's right to challenge the Grand Jury's Array" and "Denial of Due Process to be taken before a magistrate for arrignment [sic]." Petition Under the Post Conviction Hearing Act, Comm. v. Nole, p. 3.

Relying upon this Court's decision in Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981), which interpreted Pennsylvania Rule of Criminal Procedure 1504, the Superior Court held that a "petition for post conviction relief may not be dismissed summarily without counsel unless a previous petition involving the same issue or issues has been finally determined adversely to the petitioner in a counseled proceeding or one in which he knowingly waived the right to counsel." Commonwealth v. Nole, 319 Pa. Superior Ct. 593, 466 A.2d 703 (1983).

Contrary to this interpretation of Commonwealth v. Finley, supra, by the Superior Court, that case merely reaffirmed the petitioner's right to counsel to aid in preparation of a first PCHA petition. With regard to multiple petitions under the PCHA, we would adopt the view set forth in my dissenting opinion in Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980) (Flaherty, J., dissenting). Under that analysis, the trial court properly dismissed this petition and, accordingly, we would reverse the order of the Superior Court.

In order to avoid the dismissal of this petition upon a determination of waiver and obtain PCHA review of these pre-trial issues, there must be viewed as implicit in the instant petition the allegation that the three previous counsel who represented Nole were ineffective because, were they not, the issue would not be deemed waived. However, in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), this Court held that allegations of ineffective assistance

[ 506 Pa. Page 435]

    of counsel are to be raised at the first opportunity at which counsel, other than the attorney whose ineffectiveness is being alleged, represents the defendant. Accordingly, any allegation of ineffectiveness of trial counsel and the theories in support thereof, if not raised at that first opportunity, are to be deemed waived. However, under the majority opinion of Watlington, a PCHA petitioner, in order to obtain review of any allegation of trial or pre-trial error, need only allege that all preceding counsel were ineffective in failing to effectively preserve the issue for appellate review. Under the majority rule in Watlington, such an allegation constitutes "extraordinary circumstances" under the PCHA justifying the petitioner's failure to raise the issue in a timely fashion and thus the issue cannot be held to have been waived. If he files pro se and fails to properly frame the issue, an attorney will be appointed to amend the petition.

The proposition that later counsel's alleged ineffectiveness for failing to raise earlier counsel's ineffectiveness constitutes "extraordinary circumstances" warranting the review of yet a second and third petition under the Act is contrary to both the express intention of the legislature that a petitioner shall be entitled to only one petition under the PCHA and the requirement of Commonwealth v. Hubbard, supra, that ineffectiveness of trial counsel be raised at the earliest possible time. Section 9545(c) of the PCHA provides:

(c) All available grounds to be set forth. -- Any person desiring to obtain relief under this subchapter shall set forth in the petition all of his then available grounds for such relief for any particular sentence he is currently serving and he shall be entitled to only one petition for each crime. The failure to raise any issue in the petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented.

[ 506 Pa. Page 43642]

Pa.C.S.A. § 9545(c) (emphasis added).*fn*

As expressed in the dissenting opinion in Watlington:

[V]irtually any claim, no matter how insignificant, is cognizable on collateral review as long as that claim is cloaked with an allegation of ineffectiveness of counsel. No claim may be truly waived, nor may any criminal conviction become final, subsequent counsel may always generate new litigation by alleging the ineffectiveness of his predecessor. The effects of such practice are extremely serious: it vitiates the waiver doctrine and prolongs criminal litigation interminably. More significantly, because the focus of the inquiry at PCHA is rarely relevant to the guilt or innocence of the defendant, public confidence in our criminal justice system has been undercut. Ignoring guilt or innocence not only invites scathing attacks on the judiciary and the entire judicial system, engendering cynicism and suspicion on the part of ordinary citizens, but completely misconstrues the purpose of the act . . . to facilitate, in certain circumstances, additional review of convictions, not to fill the leisure hours of prisoners by permitting them to file endless post-conviction petitions. In fact, as mentioned above, the act specifically provides that a petitioner is entitled to only one petition.

Commonwealth v. Watlington, supra, 491 Pa. at 250-251, 420 A.2d at 436.

The Post Conviction Hearing Act and the principles of judgment finality require that we refocus our inquiry upon the protections which must be advanced at the post conviction stage. As stated in the Watlington dissent:

[ 506 Pa. Page 437]

On subsequent PCHA petitions, our interest is to prevent the incarceration of innocent persons, not, as at earlier stages, to prevent law enforcement agencies from abusing their authority. Stone v. Powell, 428 U.S. 465, 484-496, 96 S.Ct. 3037, 3047-3053, 49 L.Ed.2d 1067 (1976), reh. Page 437} denied, 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). It may be that a person convicted of a crime has had several lawyers and that the performance of these lawyers was in some respect imperfect. But a criminal defendant is not entitled to a perfect trial and it seems likely that if the accused were to be represented by fifty lawyers, some aspect of the performance of each could be decried as "ineffective". Both the accused and society are entitled to a final determination, an end to the proceedings that will be opened only in the case of a colorable due process claim significantly implicating the truth determining process, which, were it unaddressed by the Court, could have the effect of imprisoning an innocent person.

Id., 491 Pa. at 251-252, 420 A.2d at 437. In our view, therefore, the rule with regard to multiple filings of petitions under the PCHA which would accommodate that goal would be to "limit collateral review to claims (1) constituting a denial of due process or fundamental fairness that (2) significantly implicate the truth determining process" having the possible effect of imprisoning an innocent person. Watlington, supra, 491 Pa. at 251, 420 A.2d at 436.

*fn* To the extent that Pa.R.Crim.P. 1504 departs from this provision of the PCHA, it must be viewed as contrary to and undermining the legislative intention of the Act.

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