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

May 10, 1985

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE W. BROWN, APPELLANT



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Dauphin County at No. 644, 645, 646 C.D. 1974.

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

Author: Popovich

Opinion IN SUPPORT OF REVERSAL BY POPOVICH, J.:

I do not find fault with the determination of the Opinion in Support of Affirmance that appellant's plea renders his rubber-stamp issue waived. Its non-jurisdictional attribute is not remedied by its association with an ineffectiveness claim absent an assertion that the alleged defect was the primary motivation for the plea. See Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. denied sub nom., Chumley v. Pennsylvania, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). Appellant makes no such averment.

Further, I agree with the Opinion in Support of Affirmance that the assignment of counsel for appellant on appeal cures any defect that may have been engendered by the PCHA court's dismissal of appellant's second pro se petition without appointing counsel to assist him in drafting an amended petition. In other words, since there is no indication of record that appellant was hindered from raising any issue he wished, the present appeal is the appropriate stage at which to assail any and all matters arising out of his conviction. Accordingly, appellant's right to counsel to assist him in the perfection of his second PCHA petition has been rectified by the appointment of appellate counsel by the PCHA court.

I believe that such an approach is sanctioned by our Supreme Court in Commonwealth v. Lohr, Pa. , 468 A.2d 1375 (1983). In Lohr, appellant appealed pro se from this Court's affirmance of the lower court's dismissal, without a hearing, of his PCHA petition. He not only challenged the legality of his 1977 sentence, but additionally sought to reverse his conviction on grounds of ineffectiveness of counsel, "claims apparently raised for the first time."

In affirming, the Lohr Court utilized a "judicial economy" approach to address all of the issues raised by appellant in his pro se brief. Id. at n. 3, 468 A.2d at 1376 n. 3. This posture is exemplified by the Court's rationale for deciding to rule upon the issues raised on appeal, despite appointed counsel's failure to comply with the dictates of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as set forth in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). To-wit:

Here, counsel's actions are clearly outside the requirements of McClendon. However, the goal pursued by McClendon, review of the merit of the appeal, is fulfilled by the instant review, negating the possibility of prejudice inuring to appellant from the omissions of counsel. Furthermore, notwithstanding counsel's dereliction, any relief this Court might extend to appellant would be merely duplicitous of the instant review and, thus, consistent with principles of judicial economy, we decline the opportunity to remand for proceedings consistent with McClendon.

Id. at , 468 A.2d at 1379.

I see no reason to deviate from Lohr, for review of the merits of appellant's claims is being accomplished without any evidence of prejudice to the accused. Moreover, notwithstanding the ineffectiveness of counsel claims, I find, as did the Court in Lohr, that "any relief this Court might extend to appellant would be merely duplic[ative] of the instant review and, thus, consistent with the principles of judicial economy," I would decline appellate counsel's invitation to remand for proceedings below. (Appellant's Brief at 11-12)

However, I depart from the Opinion in Support of Affirmance on the question of the reviewability of the claims that: 1) the lower court failed to state "any reasons" for the sentence imposed as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); and 2) appellant was denied his right to allocution as provided for by Pa.R.Crim.P. 1405(a).

I find that, inasmuch as present counsel is other than counsel whose stewardship is being questioned,*fn1 the issues raised are properly before us for review. See Commonwealth v. Cooke, 288 Pa. Super. 205, 431 A.2d 360 (1981); Commonwealth v. Hobson, 286 Pa. Super. 271, 428 A.2d 987 (1981). More importantly, the nature of the claims raised, i.e., attacking the legality of the sentence imposed, preserves them for review despite the jurisdictional ramifications attendant to the entry of the plea. See, e.g., Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982).

Before addressing any of appellant's complaints, I find it necessary to respond to the Commonwealth's argument that "[t]he issues presented in the second P.C.H.A. petition were either waived or finally litigated." (Commonwealth's Brief at 4) In support of its protestation, the Commonwealth relies heavily upon Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981) and Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

In Alexander, a plurality opinion written by Justice Larsen, the Court, albeit decrying the proliferation of PCHA petitions filed by one litigant as an intolerable assault on the appellate process requiring judicial curtailment, endorsed the allowance of "at least one meaningful opportunity to have . . . issues reviewed, at least in the context of an ineffectiveness claim." Id. at , 432 A.2d at 186. Further, the Court went on to list some of the factors that should weigh on a PCHA court's determination as whether to grant or deny a hearing to assess the merits of the claims proffered in a petition. One called ...


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