Commonwealth v. Simon

285 A.2d 861, 446 Pa. 215, 1971 Pa. LEXIS 623

• Court: Supreme Court of Pennsylvania
• Decided: December 29, 1971
• Docket: Appeal, 334
• Status: Published

Opinions

Opinion by

Mr. Justice Roberts,

Appellant Thelma Simon, who was convicted of first degree murder after trial by jury, sought post-conviction relief on the ground that her trial counsel had been embroiled in an impermissible conflict of interest. Appellant’s petition for post-conviction relief was dismissed after a hearing, and this appeal followed.¹ We find that appellant has waived her conflict of interest claim, and affirm the dismissal of her petition for post-conviction relief.

It is alleged by Simon that her trial counsel, in agreeing to a contingent fee arrangement, was involved in a conflict of interest. Appellant, who was accused of murdering her husband, had been named as a beneficiary on her husband’s life insurance policy. Since Simon had limited financial resources, her trial counsel agreed that a portion of his fee would be paid out of the proceeds of the insurance policy, despite the fact that if appellant were convicted of the murder of her husband, she would not be entitled to the proceeds of her husband’s policy. See, e.g., Kravitz Estate, 418 Pa. 319, 211 A. 2d 443 (1965). Appellant contends that by entering into such an arrangement her trial counsel was effectively precluded from seeking compromise verdicts short of murder.

However, Section 3(d) of the Post Conviction Hearing Act, provides that for a petitioner to be eligible for relief it must be demonstrated “[t]hat the error resulting in his conviction and sentence has not been finally litigated or waived.” Section 4 declares in turn that an issue is waived if the petitioner knowingly and understandingly failed to raise it in a prior appeal, and he is unable to either (a) prove the existence of “extraordinary circumstances” or (b) rebut the statutory presumption that “a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.”

In the instant case, appellant prosecuted a counseled direct appeal from the judgment of sentence in 1968, in which she failed to raise the conflict of interest issue presently asserted. See Commonwealth v. Simon, 432 Pa. 386, 248 A. 2d 289 (1968). At that time she was represented by new counsel, so there can be no claim that her trial counsel’s alleged conflict of interest also tainted her direct appeal. In this present Post Conviction Hearing Act proceeding, there is no showing of any extraordinary circumstances to excuse this failure to raise the issue or any evidence to overcome the presumption that the failure was knowing and understanding. For these reasons there has been a clear Section 4 waiver.

In rejecting appellant’s contention we are consistent with this Court’s earlier statement in Commonwealth v. Cheeks, 429 Pa. 89, 239 A. 2d 793 (1968), that “[i]t would be manifestly unfair to hold appellant to a waiver when this waiver is alleged to have occurred at a time when neither the defendant nor his attorney had any way of knowing that there existed a right to be waived.” Id. at 95, 239 A. 2d at 796. Cheeks and its progeny² merely established the rule that failure to raise an issue in a prior proceeding is not a waiver when the legal principles upon which the issue is premised are newly announced in an appellate decision rendered subsequent to the date of the prior proceeding.

For example, in Cheeks the appellant’s failure to raise a particular confrontation issue at trial was deemed not to constitute a waiver of that claim inasmuch as his trial took place prior to the United States Supreme Court’s decision in Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065 (1965), which held for the first time that the Sixth Amendment’s confrontation clause is binding upon the states. The situation that confronted this Court in Cheeks is far removed from that presently before us. In advancing her conflict of interest claim, appellant does not rely upon any newly announced principles of law.

The fact that appellant’s conflict of interest claim arises from an allegedly novel factual situation does not bring this case under the Cheeks rule which precludes a waiver in instances of newly announced principles of law. All of the facts and legal precedents necessary to construct and argue this claim were as available at the time of appellant’s direct appeal as they are now. So long as counsel in her prior appeal was constitutionally effective, the fact that her present counsel may perhaps be more imaginative in constructing allegations of trial error is of no moment. To excuse an otherwise effective waiver of a claim on the sole ground that the claim arises from a novel factual setting is contrary to the significant policies of finality clearly embedded in Sections 3 and 4 of the Post Conviction Hearing Act and the cases cited supra.

The order is affirmed.

Mr. Justice Pomeiioy dissents.

1 The procedural history of this case is actually somewhat more complicated. Appellant’s initial direct appeal was quashed as untimely filed. Commonwealth v. Simon, 413 Pa. 609, 198 A. 2d 583 (1964). Eventually appellant was permitted to file an appeal as though timely filed by the Philadelphia Court of Common Pleas and her conviction was affirmed by an evenly-divided Court Commonwealth v. Simon, 482 Pa. 386, 248 A. 2d 289 (1968). Thereafter appellant sought relief under the provisions of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. §§1180-1 et seq. Appellant’s petition was denied after a hearing and an appeal was lodged in this Court. Upon the petition of the appellant, and with the consent of the Commonwealth, we remanded the case for a supplementary evidentiary hearing on the issue of an alleged conflict of interest. Following a hearing, the Court below denied relief and this appeal was taken.

2 Commonwealth v. Richardson, 433 Pa. 195, 249 A. 2d 307 (1969) ; Commonwealth v. Jefferson, 423 Pa. 541, 226 A. 2d 765 (1967).