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May 10, 1985


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


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 for concrete allegations of actual prejudice by the petitioner, substantiated by "a specific factual predicate." Abstract assertions would not be tolerated.

Initially, I would hold that Alexander's "one meaningful opportunity for review of an ineffectiveness claim" legitimately came to appellant on this appeal. Prior thereto, he was represented by counsel from the public defender's office, and, under Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), and its progeny, "[w]here, as here, appellant's assigned counsel for his first PCHA petition [was] a member of the same office that represented appellant at trial, there [was] no waiver of the ineffectiveness claim." (Citations omitted) Commonwealth v. Von Smith, 486 Pa. 564, n. 2, 406 A.2d 1034, 1035 n. 2 (1979). Accord Commonwealth v. Weathers El, 485 Pa. 28, n. 2, 400 A.2d 1295, 1297 n. 2 (1979) ("The issue of counsel's ineffectiveness at trial is not waived although it was not raised on direct appeal since [appellant] was represented at trial and on appeal by the public defender's office. It would be unrealistic to expect counsel to argue ineffectiveness of a member of his own office on appeal." (Citations omitted)).

It is beyond cavil that if a petitioner fails to raise issues in a prior counseled post conviction proceeding, he waives these issues for purposes of a subsequent post conviction proceeding unless he establishes that extraordinary circumstances existed which would have excused the failure to raise the issues. 42 Pa.C.S.A. §§ 9543(4), 9544(b)(2). Appellant has done just that through appellate counsel's contention that the failure to raise the issues presently before this Court is attributable to the stewardship of the first PCHA counsel, who represented the accused on appeal and was from the same office as guilty plea counsel.*fn2 Thus, "an extraordinary circumstance existed which would excuse his failure to raise these issues in his first PCHA petition." Commonwealth v. Senk, 496 Pa. 630, , 437 A.2d 1218, 1221 (1981); see also Commonwealth v. Anthony, Pa. , , 475 A.2d 1303, 1305 (1984) ("No petition to withdraw the plea was filed nor direct appeal ever perfected; rather, appellant sought relief under the [PCHA.] * * * [A]ppellant's requested relief was denied. The order of the PCHA Court was affirmed . . . by the Superior Court . . .. This appeal followed. Prior to reviewing the merits of appellant's claim we note that the PCHA Court held, and the Commonwealth has here argued, that the failure of appellant to effect a direct appeal constituted a waiver of the issues raised herein. However, appellant's complaints were raised in the context of an ineffective assistance of counsel claim: an 'extraordinary circumstance' under 42 Pa.C.S.A. § 9544(b), sufficient to permit review of the alleged errors. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982)." (Footnote omitted)); Commonwealth v. Frankhouser, 491 Pa. 171, , 420 A.2d 396, 398 (1980) ("If counsel on direct appeal is the same as [prior] counsel, and the issue of [prior] counsel ineffectiveness is not asserted on appeal (either by failure to take an appeal at all or by not raising the issue on appeal), there is no waiver. Commonwealth v. Dancer, [ supra ].").

Accordingly, based on the preceding and without doing violence to the spirit of the law as capsulized in Commonwealth v. Alexander, supra, only now is appellant being availed his "one meaningful" review of the ineffectiveness claim.

As for the concrete allegation of actual prejudice also called for in Alexander, I find this factor to be but one point on a continuum that leads to an analysis of counsel's claimed ineffectiveness, first, under the rubric of "arguable merit" and then scrutinization under the "reasonable basis" standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). To explicate, granted the deference accorded Riggins on sentencing matters, see Commonwealth v. Mullen, Pa. Super. , 467 A.2d 871 (1983), and the strict construction reserved for Rule 1405(a), see Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980); Commonwealth v. Curry, Pa. Super. , 465 A.2d 660 (1983), it cannot be seriously argued that the claims advanced by the accused herein lack any semblance of "arguable merit."*fn3 I am of the belief that the principles enumerated in Alexander would not be contravened by sanctioning appellant's appeal to this Court. Nor would a different result be warranted on the strength of Commonwealth v. Pettus, supra, which refused to order a remand on "boilerplate" allegations of ineffectiveness, since my review of appellant's brief, which I consider to be the equivalent of a counseled amendment to his pro se PCHA petition, reflects more than a recitation of the terms "ineffectiveness of counsel" unsubstantiated by alleged improprieties justifying no relief.

Instantly, I conclude that the aforesaid translates into a vacation of the judgment of sentence and a remand to afford the accused his right of allocution.

The position of the Opinion in Support of Affirmance that the accused alleges no facts entitling him to relief when he asserts that his allocution right was denied is tenuous at best. Our Supreme Court has spoken on this subject in no uncertain terms:

In Pennsylvania, the right of allocution, long recognized with respect to capital cases, was extended by the Rules of 1973 to all criminal defendants.

The right of allocution has retained its vitality in contemporary sentencing schema. Notwithstanding the modern innovations in our law, nothing has "lessen[ed] . . . the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Allowing a defendant to address the court on the sentencing determination fully comports with this Commonwealth's Sentencing Code, 18 Pa.C.S. §§ 1301 et seq., which embodies "the philosophy of individual sentencing," . . ..

Commonwealth v. Knighton, supra, 490 Pa. at , 415 A.2d at 11 (Citations omitted)(Footnote omitted).

Four years after the ruling in Knighton, our high Court again has spoken on the subject of allocution, but this time it is in a terse fashion which leaves no doubt in this writer's mind the deference to be accorded such a right. The scenario begins with one Julius Demetrius, III, pleading guilty to nine offenses, the substance of which is not herein relevant. Sentence was imposed following a hearing, and, thereafter, a timely filed motion to withdraw the plea and modify sentence was denied. On appeal, new counsel was appointed because prior counsel's stewardship was assailed in regard to the plea and sentencing proceedings. This Court, in a Memorandum Opinion, affirmed the judgment of sentence, and, in doing so, determined that Demetrius' right to allocution had not been abridged because at sentencing he answered: "No, Your Honor" when asked by the court if he had anything to say. Commonwealth v. Demetrius, 320 Pa. Super. 582, 467 A.2d 42 (1983).

On December 30, 1983, our Supreme Court granted Demetrius' petition for allowance of appeal at No. 1 E.D. Appeal Docket 1984. In his brief, Demetrius claimed that, inter alia,

At the time of sentencing, the learned sentencing judge, after hearing argument from the attorney for the Commonwealth and defense counsel, asked the Defendant to stand (N.T. 11/14/80, p. 63) and thereupon imposed sentence of total confinement . . .. Only after imposing such sentence did the Court inquire of the Defendant as to whether he had anything to say (N.T. 11/14/80, p. 68). Not surprisingly, in view of the impact upon the Defendant by virtue of the sentence received, the Defendant responded "No, Your Honor". (N.T. 11/14/80, p. 68). The Defendant was thus denied any meaningful exercise of his right to allocution prior to sentencing.

Because Defendant was denied his right of allocution the sentence imposed in this case is invalid and the judgment of sentence must be vacated. (footnote 8)

(Demetrius' Brief at 27, 30 & n. 8)(Emphasis in original)

Although not mentioned in the preceding passage, it requires noting that Demetrius cited Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), Commonwealth v. Knighton, supra, and Rule 1405 to buttress his argument that, notwithstanding the query after sentencing, the failure of the court to make inquiry of him before sentencing rendered his right to speak, and any hope of mitigating whatever sentence might be imposed, a hollow gesture. Cf. In re Stevens, 478 A.2d 212, 217 (Supr.Ct.Vt. 1984)("We agree with the spirit of Justice Black's dissent [in Green v. United States, supra,] and will not make allocution under V.R.Cr.P. 32(a)(1) a hollow right. The right of a defendant to address the sentencing court in person may well be of inestimable impact in a particular case."); State v. Nicoletti, 471 A.2d 613, 618 (Supr.Ct.R.I. 1984) ("The defendant in this case was not afforded the opportunity to speak before the trial justice pronounced sentence. The fact that the trial justice . . . afforded the defendant the opportunity to speak after the pronouncement [of sentence] is not sufficient. * * * [A] violation of a defendant's right to allocution . . . require[s] this court to remand the case for resentencing.").

Instantly, the record of appellant's sentencing hearing clearly demonstrates that, albeit his counsel spoke, he was not asked if he had a statement to make to the court. "The fact that appellant chose not to speak at his guilty plea colloquy does not . . . indicate a subsequent desire to remain silent." Commonwealth v. Bennett, Pa. Super. , n. 4, 462 A.2d 772, 774 n. 4 (1983). Rule 1405(a) mandates that the sentencing court invite the accused to allocute "even absent a specific request from a defendant or his counsel." (Citation omitted) Commonwealth v. Curry, supra, Pa. Super. at , 465 A.2d at 664.

Unlike the requirement of the Opinion in Support of Affirmance that a claimed denial of one's right to allocution is factually deficient and requires supplementation as to what one would have said had he/she been given the opportunity to speak,*fn4 our Supreme Court created no such condition precedent in the case of Julius Demetrius, III. On the contrary, it stated no more in its per curiam order awarding the petitioner the relief sought other than:

Judgment of sentence vacated and record remanded to Court of Common Pleas of Montgomery County to permit appellant to exercise his right of allocution and for resentencing by another judge.

Commonwealth v. Demetrius, Pa. , 484 A.2d 1383 (1984). Nor is there any mention in Demetrius of the need for a remand to allow trial counsel to state his reasons for not voicing an objection at the time of sentencing to the denial of his client's allocution right.

For this Court to imply, as the Opinion in Support of Affirmance does today, that a claimed denial of one's right to speak can be ameliorated by the accused's delineation of his importunings to an appellate court in, for example, his appellate brief would be the equivalent of this tribunal acting as the sentencing agent. A role reserved, and appropriately so, to the jurist initially hearing, seeing and, thus, reacting to those factors which impact on the ultimate sentence imposed. Our role in this scheme of criminal justice is to review, under an abuse of discretion standard, the after-the-fact type and length of punishment meted out, and not to act as the initial forum for hearing one's pleas for leniency, a portrayal which the Opinion in Support of Affirmance seems bent on pursuing in the face of our Supreme Court's advisements to the contrary. See Commonwealth v. Demetrius, supra ; Commonwealth v. Kniqhton, supra ; Rule 1405.

I am of the belief that those matters which the Opinion in Support of Affirmance would have appellant allege on appeal for evaluation, having been denied the occasion to vocalize them at sentencing, are considerations for the sentencing court, in the first instance, and not the proper subject of assessment "in the austere, dry precincts of appellate courts." Commonwealth v. Jackson, Pa. , , 485 A.2d 1102, 1104 (1984).

Notwithstanding the preceding, as also observed by the Opinion in Support of Affirmance, appellant's contention that counsel was ineffective in failing to obtain an on-the-record rationale for sentencing must fail. While Commonwealth v. Riggins, supra, now requires such an on-the-record statement, the law at the time of appellant's sentencing (1974) was otherwise. Thus, appellant is not entitled to the solace afforded by Riggins. Commonwealth v. Frankhouser, supra ; Commonwealth v. Tolassi, 258 Pa. Super. 194, 449 A.2d 636 (1982).

Finally, as was stated by the Court in Alexander, I also wish to emphasize that I do not approve of a policy that grants, ipso facto, a petitioner an evidentiary hearing merely by his incantation of the talismanic phrase "ineffectiveness of counsel" and affixing it to any and all allegations of impropriety. Rather, I follow in the footsteps of our high Court in continuing to approve of the "arguable merit/reasonable basis" criteria, emanating from the Commonwealth ex rel. Washington v. Maroney line of cases, as the framework within which a PCHA court must act in deciding whether to grant or deny a petitioner's requested relief. Commonwealth v. Clemmons, Pa. , 479 A.2d 955 (1984).

The order of the PCHA court, save for the allocution claim, is affirmed. The judgment of sentence is vacated, and a remand is ordered, to allow the accused the opportunity to exercise his right to allocution.

WICKERSHAM, J. joins in this opinion.

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