Commonwealth v. Watlington

420 A.2d 431, 491 Pa. 241, 1980 Pa. LEXIS 815

• Court: Supreme Court of Pennsylvania
• Decided: September 22, 1980
• Docket: 61
• Status: Published

Opinions

OPINION OF THE COURT

O’BRIEN, Justice.

This appeal is from an order of the Court of Common Pleas, Dauphin County, dismissing, without a hearing, a pro se Post Conviction Hearing Act petition of appellant, Tollie Watlington.

On October 10, 1972, appellant, represented by privately-retained counsel, was convicted by a jury of murder of the first degree. Appellant was immediately sentenced to life imprisonment, though the Court informed appellant of his right to file post-verdict motions within seven days. No such motions were filed.

Appellant, then represented by an Assistant Public Defender of Dauphin County, filed a direct appeal with this Court, alleging that the trial court had erred in failing to give cautionary instructions regarding the trial testimony of his co-defendant, Thomas Epps. Finding that no objection had been made at trial and that no post-verdict motions had been filed, we affirmed. Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973).

In January, 1979, appellant filed a pro se P.C.H.A. petition. A second attorney from the Dauphin County Public Defender’s office was appointed; in an amended petition, appellant alleged that trial counsel was ineffective for failing to: 1) file post-verdict motions, 2) object to certain trial improprieties (though no specific errors were mentioned), and 3) call certain witnesses who could have rebutted certain aspects of the Commonwealth’s case. On March 26, 1979, the court dismissed appellant’s petition without a hearing, finding that the issues had been waived because of appellant’s failure to allege direct appeal counsel’s ineffectiveness. No appeal was taken from the Court’s ruling.

In September, 1979, appellant filed a second pro se P.C. H.A. petition, alleging that trial counsel was ineffective for failing to: 1) object to the trial court’s charge on reasonable doubt, 2) object to the trial court’s charge that a Commonwealth witness may well have been an accomplice, and 3) object to the trial court’s charge in that the Court continuously highlighted the Commonwealth’s contention that the homicide occurred during an attempted robbery. Appellant also alleged that direct appeal counsel was ineffective for failing to allege trial counsel’s ineffectiveness and finally, that P.C.H.A. counsel was ineffective for failing to allege ineffectiveness on the part of direct appeal counsel. The Court dismissed appellant’s petition without a hearing, finding that appellant’s claims either were not cognizable under the act or had been finally litigated. This pro se appeal followed.

Appellant argues that the P.C.H.A. Court erred in dismissing his second P.C.H.A. petition without a hearing and without appointing counsel. We agree.

The Post Conviction Hearing Act provides:

“(a) For the purpose of this act, an issue is finally litigated if:

“(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling; or

“(2) The Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to avail himself of further appeals; or

“(3) The Supreme Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue.

“(b) For the purposes of this act, an issue is waived if:

“(1) The petitioner knowingly and understanding^ 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.

“(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.” Act of January 25, 1966, P.L. 1580 (1965), § 4, 19 P.S. § 1180-4 (Supp.1979-80).

None 'of the issues raised in the instant petition were raised in either appellant’s direct appeal or his first P.C.H.A. petition. Thus, the instant P.C.H.A. Court’s assertion that some of the issues were finally litigated is incorrect. Further, while the instant issues could have been raised on direct appeal or in the first P.C.H.A. petition, appellant has alleged extraordinary circumstances to justify the failure to raise them.

In Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973), we held that ineffective assistance of counsel amounts to “extraordinary circumstances” as called for in the Post Conviction Hearing Act, stating:

“Absent a knowing and intelligent waiver, Wideman was entitled to the assistance of counsel throughout the prosecution proceedings. And this means effective assistance of counsel; otherwise, the assistance of counsel would be just an empty gesture, and in effect a denial of counsel in the constitutional sense, and a deprivation of due process. The right to representation by counsel to be meaningful necessarily includes the right to effective representation.” Id., 453 Pa. at 123, 306 A.2d at 896. (Emphasis in original).

Since appellant has alleged the ineffectiveness of all prior counsel for failing to raise the issues contained in the instant petition, the P.C.H.A. Court’s ruling that said issues had been waived was erroneous.

As we have determined that the issues contained in the instant P.C.H.A. petition had been neither finally litigated nor waived, we are dealing with an uncounseled P.C.H.A. petition which was dismissed without a hearing and without the appointment of counsel. In Commonwealth v. Mitchell, 427 Pa. 395, 397, 235 A.2d 148, 149 (1967), we stated:

“We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner’s claims. Counsel’s ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967): ‘It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se. . .. Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statements of claims are functions of an advocate that are inappropriate for a judge, or his staff.’ ” (Emphasis added).

See also, Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980); Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975). As the instant proceedings were uncounseled, they were violative of Mitchell and its progeny.¹

The order of the Court of Common Pleas of Dauphin County is vacated and the matter is remanded to that court with instructions to appoint counsel to represent appellant in the filing of an amended petition and any further proceedings thereon.

LARSEN, J., files a concurring opinion in which EAGEN, C. J., joins. FLAHERTY, J., files a dissenting opinion in which KAUFFMAN, J., joins.

1 . While appellant was given counsel to aid him in the original P.C.H.A. proceedings, said counsel was of no help, for by failing to allege the ineffectiveness of direct appeal counsel, if said allegation was even possible, Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974), appellant was denied a decision on the merits of his petition.