Commonwealth v. Murray

392 A.2d 317, 481 Pa. 201, 1978 Pa. LEXIS 1031

Opinions

OPINION

O’BRIEN, Justice.

Appellant, Solomon Murray, was convicted by a jury of murder of the first degree. Post-verdict motions were denied and appellant was sentenced to life imprisonment. On direct appeal, we affirmed the judgment of sentence by a per curiam order. Commonwealth v. Murray, 473 Pa. 317, 374 A.2d 534 (1977).

Appellant then filed a pro se petition under the Post Conviction Hearing Act (PCHA).¹ Counsel was appointed and an amended petition was filed. Appellant’s requested relief was denied without an evidentiary hearing and this appeal followed.

Appellant believes he was denied the effective assistance of trial counsel for (1) failing to call four defense witnesses; (2) failing to cross-examine a majority of the Commonwealth’s witnesses; and (3) failing to object to comments about appellant’s silence at the time of his arrest. We do not reach the merits of appellant’s claims, as they have not been properly preserved for appellate review.

The facts are as follows. At trial, appellant was represented by private counsel. On direct appeal to this court, appellant was represented by the Dauphin County Public Defender’s Office. When appellant filed his pro se PCHA petition, a different private counsel was appointed to assist him in the PCHA proceedings. Appellant is represented by this third attorney on this appeal.

In Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), we held that trial counsel’s effectiveness must be challenged on direct appeal where appellate counsel was not trial counsel. Failure to do so constitutes a waiver of that claim.

The Post Conviction Hearing Act provides:

“To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 and must prove the following:

* * * * * *

“(d) That the error resulting in his conviction and sentence has not been finally litigated or waived.” 19 P.S. § 1180-3 (Supp.1977-78).

Appellate counsel on direct appeal did not challenge trial counsel’s effectiveness, thus waiving the issue. For this claim to be cognizable at this time, appellant is required to have challenged direct appeal counsel’s effectiveness for failing to raise trial counsel’s ineffectiveness. Com. ex rel. Neal v. Myers, 424 Pa. 576, 227 A.2d 845 (1967).

In Paragraph 4 of appellant’s pro se petition, he checked the block stating he was entitled to relief because of “the denial of my constitutional right to representation by competent counsel” with appellant adding “both at trial and on appellate review.” However, § 5 of the PCHA, 19 P.S. 1180-5 provides:

“(a) Any person who desires to obtain relief under this act may initiate a post conviction proceeding by filing a petition (together with two copies thereof) verified by affidavit, with the clerk of the court in which he was convicted and sentenced which said court is hereby granted jurisdiction to hear and determine same. Subject to the provisions of section (b) of this section, he may file a petition at any time. A petition shall be in the following forms:

“(1) The petition must state that it is a post conviction procedure act petition and must include the name of the petitioner, his place of confinement, an identification of the proceedings in which the petitioner was convicted and the place of conviction, the date of the entry of judgment, the sentence imposed, all facts in support of the alleged error on which the petition is based, the relief desired, and an identification of all previous proceedings that the petitioner has taken to secure relief from his conviction or sentence.” (Emphasis supplied.)

Nowhere in either the pro se petition or the amended counseled petition are any facts averred in support of the allegation of appellate counsel’s ineffectiveness.

In Commonwealth v. Fox, 448 Pa. 491, 295 A.2d 285 (1972), we recognized that prison-drawn pro se PCHA petitions must be read with liberality. Here, however, counsel was appointed to assist appellant and he did file an amended petition which contained no facts in support of the allegation that appellate counsel was ineffective. Counsel never sought leave to amend his petition to satisfy the specificity requirements of § 5 of the PCHA. In appellant’s brief submitted to our court, present counsel claims that appellate counsel was ineffective because he failed to raise trial counsel’s ineffectiveness. We believe this fact cannot cure the failure to state sufficient facts in the PCHA petition.

The Post Conviction Hearing Act further provides:

“(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.” 19 P.S. § 1180-4.

The issue has been waived. See 19 P.S. § 1180-3(d).

Order affirmed.

POMEROY, J., concurs in the order of affirmance, being of the opinion that the PCHA court committed neither an error of law nor an abuse of discretion in its disposition of the case. ROBERTS and MANDERINO, JJ., file dissenting opinions. NIX, J., dissents.

Footnotes

1

. Act of January 25, 1966, P.L. (1965) 1580, § 1, 19 P.S. § 1180-1 et seq. (Supp. 1977-78).