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COMMONWEALTH PENNSYLVANIA v. GEORGE W. BROWN (05/10/85)

SUPERIOR COURT OF PENNSYLVANIA


May 10, 1985

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE W. BROWN, APPELLANT NO. 297

APPEAL FROM THE PCHA ORDER OF SEPTEMBER 23, 1981 IN THE COURT OF COMMON PLEAS OF DAUPHlN COUNTY, CRIMINAL NO. 644, 645, 646 C.D. 1974

Before: Spaeth, P.j., Wickersham, Brosky, Cirillo, Beck, Popovich, and Hester, JJ.

Author: Cirillo

CIRILLO, J.:

Early in 1974, appellant George Walter Brown committed three separate armed robberies, each in the company of an armed cohort, in Dauphin County, Pennsylvania. Pursuant to a plea agreement, Brown pled guilty on September 16, 1974, to three charges of robbery arising from the incidents. The court accepted Brown's pleas and sentenced him to three concurrent terms of five to fifteen years in prison. No direct appeal was taken; however, on December 10, 1974, Brown filed a first petition under the Post Conviction Hearing Act*fn1 (PCHA) alleging that he had been denied the right to representation by competent counsel, that his guilty pleas had been unlawfully induced, and that a right guaranteed him by the constitution or laws of this State had been abridged. The Court of Common Pleas of Dauphin County denied the petition without a hearing, and Brown appealed to the Superior Court. On appeal Brown argued that his original counsel had been ineffective for failing to appeal to challenge (1) the validity of Brown's waiver of the right to a jury trial, and (2) the validity of his guilty plea. The Superior Court affirmed the order of the PCHA court. Commonwealth v. Brown, 242 Pa. Super. 240, 363 A.2d 1249 (1976). We held that Brown had effectively waived his right to trial by jury, and that his contentions on this point were frivolous. We also held that Brown's guilty plea colloquy established conclusively that he had pled guilty validly. Based on these holdings, we went on to hold that Brown's original counsel could not be found ineffective for failing to appeal these issues.

On September 22, 1981, Brown filed his second PCHA petition, alleging the ineffectiveness of both his original counsel and his first PCHA counsel for failing to preserve or argue claims that (1) the criminal informations filed against him were rubber-stamped with a facsimile of the district attorney's signature; (2) the sentencing judge did not put reasons for the sentence on the record in compliance with Commonwealth v. Riqqins, 474 Pa. 115, 377 A.2d 140 (1977); (3) the sentencing judge did not invite him to exercise his allocution rights at sentencing; and (4) the colloquy conducted at his guilty plea hearing was defective. Brown's petition also alleged indigency and requested the appointment of counsel. On September 23, 1981, the Honorable William W. Lipsitt denied Brown's petition without a hearing and without appointing counsel.

An appeal from Judge Lipsitt's order ensued, bringing Brown's case before this Court for the second time. On appeal Brown pursues the first three of the four issues raised in his PCHA petition below. He maintains that with regard to these three issues it was error for the judge to summarily dismiss the petition without a hearing and without appointing counsel.

Preliminarily, we turn our attention to the effect of appellant's guilty plea on the status of his current claims.

Upon entry of a plea of guilty all grounds of appeal are waived except challenges to the voluntariness of the plea, the jurisdiction of the sentencing court, and the legality of the sentence. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981); Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Whittaker, 292 Pa. Super. 172, 436 A.2d 1207 (1981). The voluntariness of appellant's plea has already been litigated and conclusively decided against him on his first PCHA appeal. Commonwealth v. Brown, supra ; see generally Commonwealth v. Edrington, Pa. Super. , 464 A.2d 456 (1983). Possibly for that reason, appellant does not pursue an attack on his plea. The jurisdiction of the court that sentenced appellant is beyond dispute. Thus, the only remaining issues that survived appellant's plea are challenges to the legality of the sentence. Appellant does raise issues directed against the validity of his sentence, but his claim that the criminal information filed against him was rubber-stamped with a facsimile of the district attorney's signature is not such an issue. Consequently, the rubber stamp issue was waived by appellant's entry of a plea of guilty.

The next principle we should recognize is that issues may be waived if they are not preserved at every stage of the criminal proceedings at which orderly state procedures make it appropriate to raise them. Commonwealth v. Harper, 292 Pa. Super. 192, 436 A.2d 1217 (1981). This principle applies independently of the principle governing waivers attendant upon a plea of guilty. It affects not only appellant's rubber stamp issue, but also his sentencing claims -- that the reasons for his sentence were not put on the record and that he was denied his right to allocution at sentencing. The rubber stamp issue was waived absolutely and irrevocably when the issue was not raised in a pretrial motion. Commonwealth v. Veneri, 306 Pa. Super. 396, 452 A.2d 784 (1982)(en banc); Commonwealth v. Spiegel, 311 Pa. Super. 135, 457 A.2d 531 (1983). Procedural sentencing issues such as appellant's reasons-on-the-record and allocution claims are also waived if not properly preserved. Commonwealth v. Martin, Pa. Super. , 477 A.2d 555 (1984) (en banc) (reasons on the record); Commonwealth v. Tolassi, 303 Pa. Super. 177, 449 A.2d 636 (1982). To be properly preserved such sentencing issues must be raised (1) at the sentencing hearing, (2) after sentencing in a motion to modify sentence, and (3) on appeal from the judgment of sentence. Commonwealth v. Tomasso, 311 Pa. Super. 103, 457 A.2d 514 (1983), aff'd on other grounds, Pa. , 485 A.2d 395 (1984). At none of these stages did appellant mount any attack on the procedure by which he was sentenced.

A third principle worth preliminary mention is the principle of waiver written into the Post Conviction Hearing Act itself. The Act provides that

(b) For the purposes of this act, an issue is waived if:

(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act ; and

(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

19 P.S. §§ 1180-4(b), (c) (emphasis added). See also id. § 1180- 5(b):

Any person desiring to obtain relief under this act shall set forth all of his then available grounds for such relief for any particular sentence he is currently serving in such petition and he shall be entitled to only one petition for each such crime. The failure to raise any such issue in such 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.

Appellant has already pursued a collateral attack on his sentence through a prior proceeding under the PCHA, and in that proceeding failed to raise the issues he now wants heard. Under the clear language of the PCHA, appellant has therefore waived the issues presented in the current appeal.

Appellant seeks to avoid the abundant evidence of waiver by alleging that his prior counsel rendered ineffective assistance in all prior proceedings. He contends that his ineffectiveness allegations entitle him to further litigation of his claims under the PCHA, on the premise that ineffectiveness of counsel is an extraordinary circumstance which precludes us from finding waiver under section 1180-4(b)(2) of the Act, supra.

A question of importance before the Court en banc on this appeal is whether appellant's ineffectiveness of counsel allegations automatically entitle him to a forum for his claims under the PCHA; or whether, under the present circumstances, appellant's allegations are insufficient to overcome the inference that these claims are waived. We would hold the latter.*fn2

First, with sole regard to appellant's complaint that the informations filed against him contained a rubber-stamped signature, we determined in Commonwealth v. Spieqel, supra, that such a claim is waived if not raised pre-trial, and that ineffectiveness allegations cannot resurrect a rubber stamp claim after conviction. The rationale for the Spiegel holding is simple and compelling: after a case has gone to trial and conviction the interest protected by the requirement of a signed information has ceased to exist. See also Commonwealth v. Veneri, supra. Even assuming that alert counsel should have challenged a rubber-stamped information before trial to insure that a district attorney made a reasoned review of the charges, after a finding of guilt there is no longer an appropriate remedy in criminal court for counsel's failure to have done so. See also Commonwealth v. Watts, 294 Pa. Super. 319, 439 A.2d 1220 (1982); Commonwealth v. Harper, supra (alternative holding).

Furthermore, appellant's allegations of ineffectiveness do not explain away the waiver of the rubber stamp issue that occurred when appellant entered his plea of guilty. It is elementary that ineffectiveness of counsel in connection with a guilty plea will warrant relief only where the ineffectiveness caused the plea to be entered involuntarily or unknowingly. Commonwealth v. Lutz, supra ; Commonwealth v. Klinger, Pa. Super. , 470 A.2d 540 (1983); Commonwealth v. Edrinqton, supra. This rule does not mean that counsel will be found ineffective and the plea overturned whenever it can be shown that the defendant was unfamiliar with some arguable point of criminal law. The waiver attending a plea of guilty sweeps away all non-jurisdictional defects and defenses; Commonwealth v. Monaco, Pa. Super. , 475 A.2d 843 (1984); the defendant entering the plea may not then understand each and every foregone claim in the same clear light of hindsight by which he later comes to appreciate them. However, his subsequent decision to reassert a waived claim will be to no avail unless the voluntary nature of the plea is called in question. Id. Here the voluntariness of appellant's plea was decided against him in his 1976 appeal; he does not ask us to overturn our earlier decision. But even if appellant's allegations of ineffectiveness were cast in terms of a collateral attack on the plea, we would decline to dredge up and reconsider the plea's validity, because it is inconceivable to us that the style of signature on appellant's informations had anything to do with his decision to plead. See Commonwealth v. Klinger, supra. Notwithstanding the intervening legal developments which gave rise to appellant's claim, the law is now as it was when appellant pled guilty: an information rubber-stamped with a facsimile of the district attorney's signature has the same presumption of validity as a manually signed information. Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983).

Second, with regard to both the rubber stamp issue and the claim that the sentencing court failed to state reasons for the sentence, neither was a viable issue for an attorney to raise at the time of appellant's conviction. The validity of rubber-stamped informations did not emerge as an issue in the law of Pennsylvania until the decision in Commonwealth v. Emanuel, 285 Pa. Super. 594, 428 A.2d 224 (1981), rev'd in Emanuel, supra. The requirement that reasons for sentence be put on the record was not established until Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Appellant pled guilty in 1974. Thus, under no circumstances could appellant's counsel be labelled ineffective for failing to raise these issues. Counsel cannot be found ineffective for failing to predict future developments in the law. Commonwealth v. Dunbar, Pa. , 470 A.2d 74 (1983); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Bradley, Pa. Super. , 480 A.2d 1205 (1984); see also Commonwealth v. Frankhouser, 491 Pa. 171, 420 A.2d 396 (1980) (principle applied to Riggins claim); Commonwealth v. Rivera, 309 Pa. Super. 33, 454 A.2d 1067 (1982) (same); Commonwealth v. Klinqer, supra (principle applied to rubber stamp claim); Commonwealth v. Warren, 307 Pa. Super. 221, 453 A.2d 5 (same). Cf. 19 P.S. § 1180-3(c)(12) (pertaining to raising of rights not recognized as existing at time of trial). Consequently, since there is no basis in law for a finding of ineffectiveness with regard to these two issues, ineffective assistance of counsel cannot provide the extraordinary circumstances that would justify their further litigation now.

Third, we turn to appellant's ineffectiveness allegations with respect to the claim that he was denied the right to speak at sentencing. Again the present attack on counsel is inadequate to resuscitate that claim. Appellant's bare assertion that his allocution rights were denied is made in the absence of any allegation of fact which, if proven, would entitle him to relief. See 19 P.S. § 1180-9. The claim that counsel were ineffective for not preserving these rights is thus stated without supporting facts, and our courts will not consider ineffectiveness claims in the abstract. Commonwealth v. Floyd, Pa. , 484 A.2d 365 (1984); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Brown, 313 Pa. Super. 256, 459 A.2d 837 (1983) (en banc); Commonwealth v. Cottman, 327 Pa. Super. 453, 476 A.2d 40 (1984).

To state a valid claim for collateral relief for a denial of allocution rights, a petitioner must show that he had something to say at sentencing that likely would have had a favorable impact on the sentence imposed. The applicable law is set forth in Commonwealth v. Barton, 312 Pa. Super. 176, 182-83, 458 A.2d 571, 574-75 (1983):

A bare denial of the right to allocution, without evidence that appellant had something to say, will not require the vacation of an otherwise proper sentence. That which he wished to say, moreover, must be such as would likely have influenced the sentence imposed. To require a vacating of the sentence and a subsequent re-sentencing, appellant will have to show that the sentencing judge was either misinformed or uninformed regarding one or more relevant circumstances. The sentence need not be vacated in order to provide appellant an opportunity to speak if he has nothing significant to say. Commonwealth v. Rivera, Pa. Super. , , 454 A.2d 1067, 1070 (1982).

The right to allocution is neither constitutional nor jurisdictional. The failure to ask a defendant if he has anything to say before sentence is imposed is not a fundamental defect inconsistent with rudimentary requirements of due process or an error inherently resulting in a miscarriage of justice. Hill v. United States, 368 U.S. 424, 428 82 S. Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962). Thus, as the Supreme Court held in Hill, collateral relief is not available when a petitioner shows merely a formal failure to comply with a rule requiring the court to invite a defendant to speak before sentence is imposed.

The right of allocution in Pennsylvania is also based upon procedural rule. See : Pa.R.Crim.P. 1405(a). A mere failure to comply formally with the mandate of Rule 1405(a), which requires the court to invite a defendant to speak, does not destroy the validity of an otherwise legal sentence and render it susceptible to collateral attack. Hill v. United States, supra.

Accord, Commonwealth v. Bell, Pa. Super. , 476 A.2d 439 (1984); Commonwealth v. Klinger, supra. Appellant has never alleged that he had anything, let alone anything significant, to say at sentencing; he has thus failed to provide any factual predicate for the claim that his allocution rights were denied. See Commonwealth v. Lowry, 260 Pa. Super. 454, 394 A.2d 1015 (1978) (Opinion by Hester, J.); see also Commonwealth v. Miller, 293 Pa. Super. 281, 438 A.2d 995 (1981). As the underlying claim is stated in a factual vacuum, mere allegations that counsel were ineffective for failing to preserve the issue are insufficient to warrant further proceedings under the PCHA. See Commonwealth v. Pettus, supra ; Commonwealth v. Clemmons, Pa. , 479 A.2d 955 (1984) (evidentiary hearing on ineffectiveness claims not warranted where appellant failed to state factual predicate for relief); cf. Commonwealth v. Cottman, supra. We disapprove Commonwealth v. Curry, Pa. Super. , 465 A.2d 660 (1983), Commonwealth v. Bennett Pa. Super. , 462 A.2d 772 (1983), and Commonwealth v. Johnson, 282 Pa. Super. 21, 422 A.2d 655 (1980), to the extent they would allow counsel to be found ineffective for failing to preserve allocution rights where no factual basis for the allocution claim is offered.*fn3

A petitioner seeking a hearing under the PCHA must set forth and offer to prove facts which, if proven, would entitle him to relief. 19 P.S. § 1180-5, -9; see also Pettus ; Clemmons, supra. We have determined that, despite his allegations that his prior counsel were ineffective, appellant has not offered to prove facts sufficient to rebut waiver of his underlying issues. See 19 P.S. § 1180-3(d). Therefore, the PCHA court exercised its discretion properly in refusing to grant a hearing on the claims raised in appellant's second PCHA petition. See Commonwealth v. Jones, 301 Pa. Super. 364, 447 A.2d 1009 (1982) (Opinion by Wickersham, J.).

We next consider the PCHA court's failure to appoint counsel to represent appellant on his second petition under the PCHA. Counsel must be appointed to assist a petitioner in PCHA proceedings unless he has had a previous, counseled petition involving the same issue or issues. Pa.R.Crim.P. 1504. See Commonwealth v. Garrison, 303 Pa. Super. 555, 450 A.2d 65 (1982). Since appellant's second, current PCHA petition raised issues that he had not raised before, the PCHA court erred in not appointing counsel to assist him.

That is not the end of our inquiry, however, for we further find that the court's error in failing to appoint counsel has been remedied and rendered harmless by the appointment of appellate counsel, making a remand for appointment of counsel at this stage unnecessary. Appellant had the opportunity in his second PCHA petition to raise the issues that he thought entitled him to relief. Neither in that petition nor in this Court has he placed any facts in dispute; instead, his claims are based purely on the legal premise that past counsel were ineffective. Though he is now represented by counsel, appellant has failed to breathe legal merit or factual content into his claims. Under the circumstances, it would be a futile act and a waste of judicial resources and time to remand for appointment of yet another counsel. Cf. Commonwealth v. Minnick, 436 Pa. 32, 258 A.2d 515 (1969) (Supreme Court would not remand for appointment of PCHA counsel where all issues cognizable on appeal from guilty plea had been finally litigated); cf. also Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983) (Court would not follow rule requiring remand for filing of attorney's withdrawal brief setting forth claims of arguable merit where appellant's pro se brief adequately presented claims); Commonwealth v. Bossick, 305 Pa. Super. 196, 451 A.2d 489 (1982) (Superior Court would not remand for appointment of new counsel where trial counsel argued his own ineffectiveness on appeal, but ineffectiveness claim lacked arguable merit).

Our distinguished President Judge is of the view that we must remand for appointment of counsel because we cannot know that no issues remain in the record until we are assured that counsel at the hearing level has reviewed the entire record. We cannot accept this view because it assumes too little about prior counsel's representation, and expects too much of counsel that would be appointed.

It assumes that appellant's prior counsel, as well as counsel on this appeal, have not reviewed the record diligently and presented to the courts all arguments of colorable merit that are there. Such an assumption is in direct conflict with the rule that counsel is presumed to be effective. Commonwealth v. McNeil, Pa. , 487 A.2d 802 (1985); Commonwealth v. Floyd ; Commonwealth v. Clemmons ; and Commonwealth v. Dunbar, supra ; Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Norris, 305 Pa. Super. 206, 451 A.2d 494 (1982). Of course, the presumption of counsel's effectiveness is a rebuttable one, and counsel have been proven ineffective in the past. But there is no basis for us to speculate on this appeal that there may be undiscovered instances of ineffectiveness upon which appellant could obtain relief, especially without an appropriate offer on appellant's part to show that such instances exist.

It is also questionable whether a remand for appointment of counsel at this juncture would really provide the kind of assurance the President Judge expects. Surely our experience as an appellate tribunal teaches us that the fact that PCHA counsel has been appointed at the hearing court level provides very little assurance that no issues remain in the record. Even a long succession of attorneys having worked on a case does not necessarily preclude the next attorney from discovering "issues" that have not been explored before. Our concern should be not to see that every conceivable issue has been raised under the customary ineffectiveness of counsel rubric; rather, we should be satisfied once we can conclude that prior counsel effectively and competently stewarded his client's case. As our colleague Judge Richard B. Wickersham said in dissent in Commonwealth v. Bey, 284 Pa. Super. 210, 217 n.1, 425 A.2d 777, 781 n.1 (1981), "If we insist that the object of review is to eliminate the possibility of mistake, we condemn ourselves to endless litigation that can never produce finality of judgment."

In our search for perfect justice, we have been too willing to leave criminal judgments open to repeated collateral attacks, and for too long have ignored the principle that criminal litigation, like any other litigation, must some day come to an end. See Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1973). If criminal judgments are to command the respect due them, we must abide by the original spirit of the Post Conviction Hearing Act, and not be seduced by the ineffectiveness of counsel lore which presently obscures the true intendment of the Act. The Act is addressed exclusively to remedying "convictions obtained and sentences imposed without due process of law." 19 P.S. § 1180-2. As the eminent Justice Thomas W. Pomeroy, Jr., said in Commonwealth v. Sullivan, 472 Pa. 129, 183, 371 A.2d 468, 494 (1977) (Concurring and Dissenting Opinion joined by O'Brien, J.), "[The] Act was designed to allow a defendant to assert after trial and conviction the existence of some eqregious fault or flaw in the prior proceedings which denied him the benefits of a fair trial and thus deprived him of due process of law or equal protection of the laws or both." (Emphasis added). Early in the Act's existence our Supreme Court repeatedly held that only denials of constitutional rights were cognizable in proceedings under the Act. Commonwealth v. Schmidt, 452 Pa. 185, 299 A.2d 254 (1973); Commonwealth v. Gwyn, 449 Pa. 131, 295 A.2d 73 (1972); Commonwealth v. Smulek, 446 Pa. 277, 284 A.2d 763 (1971); Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970); Commonwealth v. Musser, 437 Pa. 131, 262 A.2d 678 (1970). See 19 P.S. § 1180-3(c). These holdings have never been repudiated by a majority of the Court, although members of the Court have since divided over whether the Act extends its protection beyond constitutional claims. See Commonwealth v. Betrand, 484 Pa. 511, 399 A.2d 682 (1979); Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976); see also Commonwealth v. James, 493 Pa. 545, 427 A.2d 148 (1981)(Opinion in Support of Remand by O'Brien, J.); but see Commonwealth v. Zillgit, 489 Pa. 189, 195 n.9, 413 A.2d 1078, 1081 n.9 (1980) (dictum) (majority of Court cited constitutional error threshold under PCHA with approval); cf. Commonwealth v. Dunbar, supra, at n. 6, 470 A.2d at 79 n. 6 (Court declined invitation to address question).

Another relevant rule limiting the availability of relief under the Act is that a person is entitled to only one PCHA petition. 19 P.S. § 1180-5(b). See also Commonwealth v. Sisak, 249 Pa. Super. 159, 375 A.2d 808 (1977). A second or subsequent PCHA petition is the exception, and should be allowed only under extraordinary circumstances. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981) (Opinion by Larsen, J.); Commonwealth v. Jones, 301 Pa. Super. 364, 447 A.2d 1009 (1982).

The principle of judgment finality is stultified and defeated if every prisoner thinks that bald allegations of counsel's ineffectiveness will automatically open a sentence to repeated collateral attacks under the PCHA. It is high time we stated that not every allegation of ineffective assistance of counsel is of constitutional dimension, or constitutive of the type of truly extraordinary circumstances that justify relitigation of final judgments of sentence. See Strickland v. Washington, U.S. , 104 S.Ct. , 80 L.Ed.2d 674 (1984) (whether defendant received effective assistance of counsel directly dependent on whether he received fair trial consistent with procedural guarantees of sixth amendment to the United States Constitution); Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983) (defense counsel's failure to object to Commonwealth petition for extension of time under Pa.R.Crim.P. 1100 will not result in discharge unless defendant has been deprived of his underlying constitutional right to a speedy trial) (dictum); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983) (counsel's inadequacy for failure to press for change of venue did not warrant new trial absent prejudice to defendant's fair trial rights); see also Commonwealth v. Lutz, supra ; Commonwealth v. Alexander, supra ; Commonwealth v. Silvis, 307 Pa. Super. 75, 77, 452 A.2d 1045, 1046 (1982) ("Attacks on counsel may not be used to circumvent the consequences of failing to preserve issues for appeal."). As a matter of routine, PCHA petitioners charge every counsel who has represented them to date with ineffectiveness; surely this mere device of pleading should not cause us to say that all their cases involve "extraordinary circumstances." See Commonwealth v. Klinqer, supra (attacks on effectiveness of three prior counsel did not state claim amounting to extraordinary circumstances).

In the present case, appellant took advantage of Post Conviction Hearing Act procedures in December of 1974, when he filed his first petition for post-conviction relief and pursued his claims in an unsuccessful appeal to this Court. Not until September of 1981, seven years after he was sentenced, did appellant file his second PCHA petition attacking the criminal informations preferring charges against him, and the proceeding at which sentence was passed. A lapse of time in filing a PCHA petition is a factor in assessing its merit. Commonwealth v. Courts, Pa. Super. , 461 A.2d 820 (1983); Commonwealth v. Courts, Pa. Super. , 461 A.2d 828 (1983); Commonwealth v. Strickland, 306 Pa. Super. 516, 452 A.2d 844 (1982). Even at this late date, represented by his third attorney in the case, appellant has failed to present anything beyond claims of "ineffective assistance of counsel in the abstract."

This case is like Commonwealth v. Lowenberq, 493 Pa. 232, 425 A.2d 1100 (1981) in that "Appellant's P.C.H.A. petitions assert, in an ineffectiveness context, underlying claims of error which are not of such an exceptional nature as to warrant an opportunity for consideration beyond an initial P.C.H.A. proceeding." 493 Pa. at 236, 425 A.2d at 1102 (Opinion in Support of Affirmance by Flaherty, J.). At no point in these PCHA proceedings has Mr. Brown alleged any taint in the truth-determining process by which he was adjudged guilty of armed robbery. See id.; Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980)(Opinion by Flaherty, J.). Instead, Mr. Brown has offered us three stale procedural claims, two of which were not yet recognized as grounds for relief when he first stood at the bar of justice, the other of which is devoid of any factual content.

Prisoners who are in fact guilty of the crimes of which they stand convicted must learn to accept the consequences of their guilt; we should not encourage them to relentlessly scour the prison law library in search of new rules and holdings with which to bombard the courts.

We would affirm the order of the PCHA court denying relief.

BECK and HESTER, JJ. join in this opinion.


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