Commonwealth v. Parker

445 A.2d 151, 299 Pa. Super. 68, 1982 Pa. Super. LEXIS 4078

• Court: Superior Court of Pennsylvania
• Decided: April 30, 1982
• Docket: No. 2129
• Status: Published

Opinions

WIEAND, Judge:

This is an appeal from an order dismissing Lloyd Parker’s P.C.H.A. petition without hearing and without any consideration of the merits of the issues raised therein. The petition is the fourth P.C.H.A. petition filed by appellant following his 1966 convictions for robbery and carrying a concealed deadly weapon.¹ Appellant contends that trial counsel and all subsequent counsel were ineffective for failing to assert a claim that the victim’s identification testimony was tainted by a suggestive pre-trial identification procedure. We are constrained to reverse and remand for an evidentiary hearing and consideration of the issue which appellant has raised.

The trial court dismissed appellant’s P.C.H.A. petition without considering the merits of appellant’s averment because it was of the opinion that the suggestiveness of the pre-trial identification procedure had previously been litigated. Our review of the record does not support this conclusion. It is true that appellant previously contended that a one-on-one confrontation with the victim three days after commission of the robbery had been invalid because he had not then been represented by counsel. It is also true that when an issue has been heard and decided, re-litigation may not be achieved by advancing a different theory. Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972). However, in Commonwealth v. Barnes, 248 Pa.Superior Ct. 579, 375 A.2d 392 (1977), this Court held that the issues of suggestiveness of pre-trial lineup and failure to be represented by counsel at such lineup are separate issues, and that the prior litigation of one is not a bar to a claim that counsel was ineffective for failing to raise the other.

Moreover, by asserting the ineffectiveness of trial counsel and all subsequent counsel for failing to raise the issue of the suggestiveness of the pre-trial one-on-one confrontation, appellant has alleged “extraordinary circumstances” which justify the failure to raise the issue in prior P.C.H.A. petitions. Thus, the issue has not been waived. Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980).

Substantively, we are unable to resolve appellant’s claim on the present state of the record. When appellant was displayed one-on-one to the victim three days after the robbery, she was unable to identify him. At the preliminary hearing, however, she unequivocally identified appellant as one of the robbers, and this testimony was repeated during appellant’s trial. Under these circumstances, appellant’s contention appears to have arguable merit. At least, a contrary finding cannot be made summarily.

For these reasons we reverse the order of the court below and remand for an evidentiary hearing at which the merits of the issues raised in appellant’s P.C.H.A. petition should be considered.²

Reversed and remanded for proceedings consistent with the foregoing opinion.

SPAETH, J., files a concurring opinion. JOHNSON, J., files a dissenting opinion.

1 . The convictions were affirmed on direct appeal in Commonwealth v. Parker, 208 Pa.Superior Ct. 760, 223 A.2d 136 (1966).

2 . Although we adhere to and follow the holding of a majority of the Court in Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980) and the decision of the Superior Court in Commonwealth v. Barnes, 248 Pa.Superior Ct. 579, 375 A.2d 392 (1977), the fact that we are here reviewing appellant’s fourth P.C.H.A. petition suggests the urgent need to find the procedural means by which the number of collateral attacks upon the same criminal conviction can be limited. This is a vexing problem. “[Vjirtually 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.” Commonwealth v. Watlington, supra, 491 Pa. at 250, 420 A.2d at 436 (Dissenting Opinion by Flaherty, J.).

The first step in finding a solution may well be to remove the confusion which now exists between “waiver” and “forfeiture.” Waiver of a right requires a defendant’s knowing and intelligent decision to surrender that right. Forfeiture, however, “refers to a forfeiture of remedies and is a facet of the procedural law of judgments; it is a principle concerned with the finality of judgments. Many remedies may be forfeited without anyone’s conscious decision.” Strazzella, Ineffective Assistance of Counsel Claims: New Uses, New Problems, 19 Arizona Law Rev. 443, at 475. When we acknowledge that rights can be forfeited without a considered, personal decision by the defendant, then we will be able to focus more clearly on counsel’s inactivity or tactical decision producing such forfeiture.

Secondly, and perhaps more importantly, we need to draw a distinction between simple counsel error, on the one hand, and ineffective assistance of counsel, on the other. This requires that we re-define that ineffective assistance of counsel which deprives a defendant of the constitutional right to fair trial and requires collateral relief. To permit unlimited and largely unfounded claims of ineffective assistance is offensive to our adversary system; will have a debilitating effect on the criminal, trial bar; will continue to prove tremendously wasteful of judicial resources; and will enhance public discontent with a criminal justice system which is perceived, whether rightly or wrongly, as being overly solicitous of rights of criminal defendants which are largely irrelevant to the issue of guilt or innocence. Perhaps a new definition might hold counsel constitutionally ineffective only in circumstances demonstrating “basic and fundamental error.”

Only when we limit collateral relief to instances in which counsel’s misfeasance or nonfeasance has been so egregious as to deprive a defendant of his constitutional right to a fair trial, and only when we are willing to recognize that substantive and procedural rights can be “forfeited” by counsel without a prior, knowing and intelligent waiver by the client, can we confidently expect to find a solution. Only then can we impose a realistic and fair limitation upon the seemingly interminable, collateral attacks and appeals which follow convictions because of claims of ineffective assistance of counsel.

To such a goal, by these or other means, we ask the Supreme Court to lend its supervisory and rule making powers.