Opinion
June 16, 1975.
March 29, 1976.
Criminal Law — Practice — Post Conviction Hearing Act — Direct appeal to Superior Court from judgment of sentence — Defendant represented by new counsel on direct appeal — Alleged ineffective assistance of counsel — Judgment of sentence affirmed by Superior Court per curiam without opinion — Effectiveness of counsel issue not finally litigated — Commonwealth v. Dancer, 460 Pa. 95 (1975) — Defendant permitted to file original post-trial motions nunc pro tunc.
1. In this case, the defendant was convicted of various crimes. He filed motions for new trial and in arrest of judgment, which were denied without being considered on their merits because they were not timely filed. Defendant took a direct appeal to the Superior Court and was represented by new counsel. He alleged that his trial counsel was ineffective and set forth three theories in support of his grounds for relief. The Superior Court affirmed the judgment of sentence per curiam without opinion. Defendant then filed a petition under the Post Conviction Hearing Act alleging four grounds of relief including ineffective assistance of counsel and three other grounds. After an evidentiary hearing, the lower court denied the petition for post-conviction relief. Defendant appealed to the Superior Court, which reversed the order of the lower court and remanded the case with instructions that the defendant be permitted to file his original post-trial motions nunc pro tunc.
2. Section 3(d) of the Post Conviction Hearing Act requires that for one to be eligible for relief one must prove "[t]hat the error resulting in his conviction and sentence has not been finally litigated or waived."
3. Section 4(a)(2) provides, inter alia, that "[f]or the purpose of this act, an issue is finally litigated if: . . . [t]he Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals. . ."
4. Claims of ineffectiveness of counsel may only be raised in PCHA proceedings (1) where a petitioner is represented on appeal by his trial counsel, (2) where the petitioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record, (3) where the petitioner is able to prove the existence of other "extraordinary circumstances" justifying his failure to raise the issue, or (4) where the petitioner rebuts the presumption of knowing and understanding failure. Commonwealth v. Dancer, 460 Pa. 95 (1975).
5. The law prior to the decision in Commonwealth v. Dancer, supra, was that ordinarily, the Superior Court would not decide a claim of ineffective assistance of counsel on direct appeal.
6. Initial direct appeal from the judgment of sentence was taken prior to the decision in Commonwealth v. Dancer, supra. It was Held, in this case, that the per curiam affirmance of the judgment of sentence was not a "final litigation" of the defendant's ground for relief, i.e., ineffective assistance of counsel.
Criminal Law — Post Conviction Hearing Act — Waiver of issues not raised in direct appeal — Ground for relief apparent on record at time of direct appeal — Lack of extraordinary circumstances — New theories waived.
7. In his direct appeal from the judgment of sentence, the defendant alleged ineffective assistance of counsel based on the following three theories: (1) failure to file pre-trial motions to suppress evidence seized pursuant to an arrest and search and seizure, (2) failure to file pre-trial motions to suppress an out-of-court identification, and (3) failure to file timely post-trial motions. In his subsequent petition under the Post Conviction Hearing Act, the defendant listed many new theories in support of his claim of ineffective assistance of counsel. It was Held that all theories and arguments for relief were waived other than the arguments raised on direct appeal.
8. To be entitled to relief under the Post Conviction Hearing Act, a defendant must prove "that the error resulting in his conviction and sentence has not been finally litigated or waived." Section 3, Post Conviction Hearing Act.
9. An issue is waived if "the petitioner knowingly and understandingly failed to raise it . . ." and "the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue." Section 4, Post Conviction Hearing Act.
10. Where the grounds for relief are apparent on the record at the time of the defendant's direct appeal, and the defendant is represented by counsel other than his trial counsel, he waives all issues in proceedings under the Post Conviction Hearing Act which were not raised on direct appeal.
11. It was Held in this case that all new theories were waived by the defendant in the Post Conviction. Hearing Act proceedings regardless of whether the ground for relief (ineffective assistance of counsel) was finally litigated.
12. To the extent that the Superior Court's per curiam affirmance was not a "final litigation" of the ground for relief based on ineffective assistance of counsel, the defendant was to develop a record to support the three theories briefed on direct appeal and not to construct new theories.
Criminal Law — Alleged ineffective assistance of counsel — Test for determining effectiveness of counsel — Failure to move to suppress evidence — Commonwealth v. Hill, 231 Pa. Super. 371 (1974) — Consideration by appellate court of the effect of a motion to suppress in the lower court.
13. In determining the effectiveness of counsel, the inquiry of an appellate court ceases and counsel's assistance is deemed constitutionally effective once the appellate court is able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests.
14. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.
15. The balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.
16. Ordinarily, there is little tactical reason for not filing a motion to suppress, but it does not follow that counsel was ineffective for failure to file such a motion.
17. Where trial counsel does not file a motion to suppress, an appellate court will consider what would have been the result if counsel had filed such a motion, and if it is seen that the motion would have been denied, failure to file the motion does not constitute ineffective assistance of counsel.
18. Counsel will not be declared ineffective for failure to file a motion that he could reasonably have regarded as pro forma. Commonwealth v. Hill, 231 Pa. Super. 371 (1974).
19. It was Held in this case that a complete review of the record indicated that a motion to suppress the out-of-court identification would not have been successful.
20. It was Held that a complete review of the trial testimony of the arresting officers showed that there was sufficient probable cause for arrest, and that the search was valid as incident to a lawful arrest.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 510, Oct. T., 1975, from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1972, Nos. 1088 to 1091, inclusive, in case of Commonwealth of Pennsylvania v. Harold Jackson. Order reversed and case remanded.
Petition for post-conviction relief. Before DOTY, J.
Order entered dismissing petition. Defendant appealed.
Joan Saltzman and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.
Howell K. Rosenberg, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
HOFFMAN, J., filed a concurring opinion, in which SPAETH, J., joined.
VAN der VOORT, J., concurred in the result.
SPAETH, J., joined in both the majority opinion by JACOBS, J., and in the concurring opinion by HOFFMAN, J.
Submitted June 16, 1975.
On October 17, 1972, the appellant was found guilty of aggravated robbery, burglary, pointing a firearm and carrying a concealed deadly weapon. On November 1, 1972, thirteen days after the verdicts of guilty were returned, appellant filed motions for a New Trial and In Arrest of Judgment. These motions were argued on December 5, 1972, and held under advisement. On August 10, 1973, these motions were denied and sentence was imposed. A counseled direct appeal from the judgment of sentence was taken to this Court, at which time, appellant raised ineffective assistance of counsel as the only ground for relief, and briefed three theories in support thereof. The three theories were that appellant's trial counsel was ineffective: (1) he failed to file a pretrial motion to suppress evidence seized pursuant to an arrest and search and seizure; (2) he failed to file a pretrial motion to suppress an out-of-court identification; and (3) he failed to timely file post-trial motions. We affirmed the judgment of sentence per curiam without opinion. Commonwealth v. Jackson, 228 Pa. Super. 886, 322 A.2d 702 (1974). Appellant did not petition our Supreme Court for allowance of appeal from that decision.
In an opinion filed on October 23, 1973, Judge LOWE (specially presiding) held that no grounds were properly raised by these motions because of non-compliance with Pa.R.Crim.P. 1123. [This prosecution is governed by Pennsylvania Rules of Criminal Procedure 1123(a) and 1123(b) as adopted by the Supreme Court of Pennsylvania January 24, 1968, and effective August 1, 1968, and not by the more recent amendments which were adopted June 8, 1973, and effective forty-five (45) days thereafter.]
The post-trial motions were not timely filed. Pa.R.Crim.P. 1123(a) requires post-trial motions to be filed within seven days of the verdict. Instantly, post-trial motions were lodged thirteen days after the verdicts of guilty were returned. Leave to extend the filing of the motions was neither sought nor granted.
Also, the post-trial motions failed to comply with Pa.R.Crim.P. 1123(b) which required that "[a] motion for a new trial shall be in writing, and the grounds shall be specified. . . . Leave to state additional specific grounds after the transcript is lodged must be sought within the period allowed pursuant to section (a) of this Rule. . . . Only the grounds so raised may be argued before the court." Appellant's trial counsel never filed additional reasons in support of his written motions but attempted to raise additional reasons orally. Judge LOWE refused to entertain oral argument on grounds not specified in the written motions.
Appellant was represented by counsel other than his trial counsel. Instantly, appellant is represented by a third counsel.
On June 3, 1974, appellant filed a petition for relief under the Post Conviction Hearing Act. An evidentiary hearing was scheduled and an attorney from the Public Defender's Office was appointed to represent the appellant. Appellant raised, in writing and by oral amendment, the following grounds for relief: (1) ineffective assistance of counsel; (2) lack of intelligent waiver of conflict of interest between the appellant and his co-defendant; (3) suppression of evidence by the Commonwealth by failing to produce an eyewitness to the robbery; and (4) introduction of evidence as a result of illegal arrest, search and lineup procedures. After an evidentiary hearing, at which the appellant's trial counsel testified as a Commonwealth witness, the lower court denied the petition for post-conviction relief and the instant appeal followed.
Act of January 25, 1966, P.L. (1965) 1580, 19 P. S. § 1180-1 et seq. (Supp. 1975-76).
New theories in support of this ground for relief were developed on the record at the post conviction hearing. See note 5 infra.
The facts surrounding the episode out of which the charges against the appellant arose will be discussed infra insofar as they relate to specific issues considered. Instantly, the appellant has briefed sixteen arguments in support of his request for a new trial, or, in the alternative, in support of his right to file post-trial motions nunc pro tunc. Initially, we must consider which arguments are properly cognizable in the instant appeal.
These arguments may be grouped as follows:
I. New Grounds for Relief —
1. Appellant was denied due process of law in that evidence was admitted against him at trial which was found pursuant to an illegal arrest and search;
2. Appellant was denied due process in that an unnecessarily suggestive identification procedure was held without counsel present;
3. Appellant did not knowingly and intelligently waive the right to be represented by separate counsel.
II. New Theories for Relief developed at the evidentiary hearing held pursuant to the provisions of the Post Conviction Hearing Act (in support of the ground for relief — ineffective assistance of counsel) —
1. Trial counsel was ineffective in that putting the appellant on the stand to admit his presence at the scene was tantamount to a guilty plea with none of the procedural safeguards;
2. Trial counsel was ineffective because he failed both to adequately prepare the case and to develop a trial strategy;
3. Trial counsel was ineffective in that he failed to attempt to locate a material witness to the robbery, who both he and appellant believed would exculpate appellant and his co-defendant;
4. Trial counsel was ineffective in failing to inform appellant of the meaning of conflict and to explain possible conflicts to him;
5. Trial counsel was ineffective because he failed to object to prosecutorial misconduct;
6. Trial counsel was ineffective in that he denied his client the presumption of innocence and relieved the Commonwealth of its burden to prove every element of the offense beyond a reasonable doubt;
7. Trial counsel was ineffective because he represented two co-defendants in a way which created a conflict; he favored appellant's co-defendant in his representation;
8. Trial counsel was ineffective in that he failed to argue reasons in support of a demurrer; especially as to the charge of burglary;
9. Trial counsel was ineffective in that he failed to move to strike the testimony of a rebuttal witness, who could not identify the appellant or his co-defendant;
10. Trial counsel was ineffective in failing to object to an argumentative, confusing jury instruction as to a missing material witness.
III. Theories for Relief — Previously Briefed on direct appeal from the judgment of sentence (in support of the ground for relief — ineffective assistance of counsel) —
1. Trial counsel was ineffective because he failed to file a pre-trial motion to suppress identification; which motion would have been successful and would have vitiated the need for further proceedings;
2. Trial counsel was ineffective in that he failed to file a motion to suppress physical evidence; which failure was inconsistent with the defense in the case;
3. Trial counsel was ineffective in that he failed to file post-trial motions within seven days as required by Rule 1123(a) of the Pennsylvania Rules of Criminal Procedure; thereby denying appellant his right to appeal.
I
Section 3(d) of the Post Conviction Hearing Act requires that for one to be eligible for relief one must prove "[t]hat the error resulting in his conviction and sentence has not been finally litigated or waived." Act of January 25, 1966, P.L. (1965) 1580, § 3(d), 19 P. S. § 1180-3(d) (Supp. 1975-76). Section 4(a)(2) provides, inter alia, that "[f]or the purpose of this act, an issue is finally litigated if: . . . [t]he Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals. . . ." Act of January 25, 1966, P.L. (1965) 1580, § 4(a)(2), 19 P. S. § 1180-4(a)(2) (Supp. 1975-76).
The Commonwealth first urges that the ground for relief, ineffective assistance of counsel, was, pursuant to the pertinent provisions of the Post Conviction Hearing Act, supra, "finally litigated" by this Court's per curiam affirmance, Commonwealth v. Jackson, supra, of the judgment of sentence. The appellant contends that the per curiam affirmance did not constitute a decision on the merits, and consequently the claim of ineffective assistance of counsel was not "finally litigated." We are convinced that the appellant's contention has merit and that the appellant's ground for relief, ineffective assistance of counsel, was not "finally litigated" prior to the evidentiary hearing held pursuant to the provisions of the Post Conviction Hearing Act.
The Commonwealth also urges that the claim of ineffective assistance of counsel was "finally litigated" in that pursuant to Section 4(a)(2) of the Post Conviction Hearing Act the appellant did not petition the Supreme Court for allowance of appeal from this Court's per curiam affirmance of the judgment of sentence.
The initial direct appeal from the judgment of sentence was taken prior to the decision in Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). In that decision, our Supreme Court held: "Our Post Conviction Hearing Act and the principles of judgment finality mandate that claims of ineffectiveness of counsel may only be raised in PCHA proceedings 1) where petitioner is represented on appeal by his trial counsel, for it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness, 2) where the petitioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record, 3) where the petitioner is able to prove the existence of other `extraordinary circumstances' justifying his failure to raise the issue, Post Conviction Hearing Act § 4 (b)(2), 19 P. S. § 1180-4(b)(2) (Supp. 1974) or 4) where the petitioner rebuts the presumption of `knowing and understanding failure.' Post Conviction Hearing Act § 4(c), 19 P. S. § 1180-4(c) (Supp. 1974)." Id. at 100-101, 331 A.2d at 438 (footnote omitted).
"The Supreme Court further held in Commonwealth v. Twiggs, 460 Pa. 105 [ 331 A.2d 440] (1975), that if such issue cannot be resolved by the appellate court, due to an inadequate record, the case can then be remanded to the trial court for an evidentiary hearing." Commonwealth v. Learn, 233 Pa. Super. 288, 290, 335 A.2d 417, 418 (1975).
Prior to Commonwealth v. Dancer, supra, although the Post Conviction Hearing Act was clear in its mandate that a decision on the merits of an issue by this Court would constitute a "final litigation" barring subsequent Post Conviction Hearing Act relief, the decisional law relating to ineffective assistance of counsel challenges was not as clear. Commonwealth v. Harrison, 228 Pa. Super. 42, 44, 323 A.2d 848, 849 (1974) best summarizes the posture of our Court prior to Commonwealth v. Dancer, supra: " Ordinarily this Court will not decide a claim of ineffectual assistance of counsel on direct appeal. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, where, as here, counsel on appeal is other than counsel at trial and the question of proper representation arguably appears on the record, public policy and the interest of justice dictate that such an issue should be considered on direct appeal. Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970)." (Emphasis added.)
The Commonwealth argues that since appellant's counsel on appeal was other than his trial counsel, and since appellant's counsel vigorously argued that the record was sufficiently developed to consider the issue of ineffective assistance of counsel, that our per curiam affirmance can mean nothing other than a decision on the merits.
However, the Commonwealth's brief at the time of the direct appeal from the judgment of sentence concerned itself with one issue: "The sole claim raised on the instant appeal is that trial counsel was incompetent for failing to file pretrial motions to suppress evidence and for failing to file post-trial motions in timely fashion. The existing record does not establish irrefutably either contention. Cf. Commonwealth v. Benjamin, 219 Pa. Super. 344, 345 (1971). Without a collateral hearing, it cannot be determined whether counsel refrained from moving to suppress evidence because he believed such a claim would be frivolous or because of an oversight on his part. . . . A collateral hearing is equally essential to establishing appellant's right to file post-trial motions nunc pro tunc. Presentation and disposition of post-trial motions at the trial court stage is a prerequisite for appeal. Commonwealth v. Whiting, 205 Pa. Super. 92 (1965). If it is shown that counsel's failure to comply with the requirements for timely filing prescribed in Rule 1123 was not done with the knowing complicity of appellant, then appellant is admittedly entitled to have his right to post-trial motions restored for their litigation, nunc pro tunc." Brief for Appellee at 3-4, Commonwealth v. Jackson, 228 Pa. Super. 886, 322 A.2d 702 (1974) (emphasis added).
In Commonwealth v. Benjamin, 219 Pa. Super. 344, 280 A.2d 625 (1971), the appellant, while in prison, filed a petition pursuant to the Post Conviction Hearing Act wherein he alleged, inter alia, that he was denied the effective assistance of counsel. We summarized the procedural context of Commonwealth v. Benjamin, supra, as follows: "As an appeal was pending before this Court, the petition was held in abeyance pending the outcome of that appeal. We affirmed the judgment of sentence per curiam." Id. at 345, 280 A.2d at 626 (citation omitted). Subsequently, the lower court ". . . dismissed the Post Conviction Hearing Act petition without a hearing stating that appellant's claims were patently frivolous or had been disposed of in prior proceedings." Id. (Emphasis added.) We held that the ineffective assistance of counsel claim had not been previously litigated: "Ordinarily, in the absence of clear and irrefutable on the record proof that counsel was ineffective, we will not decide an ineffective assistance of counsel claim on direct appeal. Rather we will wait until an evidentiary hearing has given the Commonwealth an opportunity to show that the representation was effective under the standards enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Cf. Commonwealth v. Macek, 218 Pa. Super. 124, 279 A.2d 772 (1971)." Id. at 345, n. 1.
Given the Commonwealth's position at the time of the direct appeal from the judgment of sentence that a collateral proceeding was necessary, and given this Court's pre- Dancer posture on deciding issues of ineffective assistance of counsel on direct appeal, there is too great a possibility for injustice if we hold that our per curiam affirmance was a "final litigation" of the appellant's ground for relief — ineffective assistance of counsel.
Similarly, on the facts of this case we do not find that the appellant's failure to petition our Supreme Court for allowance of appeal from the per curiam affirmance of the judgment of sentence constituted a "final litigation." See note 6, supra. In light of our pre- Dancer decisions on the question of whether we would decide issues of ineffective assistance of counsel on direct appeal and the Commonwealth's argument that a collateral proceeding was required, the appellant's decision to immediately (our per curiam affirmance was filed on May 29, 1974, the appellant petitioned for post conviction relief on June 3, 1974) pursue post conviction relief cannot herein operate to his disadvantage.
However, while we hold that ineffective assistance of counsel, as a ground for relief had not been "finally litigated" for purposes of Post Conviction Hearing Act relief, we do not hold that all of the appellant's sixteen arguments, see note 5, supra, are properly cognizable on appeal. All but three of these arguments have been waived.
The three theories briefed on direct appeal from the judgment of sentence. See note 5, supra.
II
— A —
Three of the appellant's sixteen arguments represent new grounds for relief. See note 5, supra. These grounds for relief were not raised on direct appeal from the judgment of sentence and were therefore waived. As our Supreme Court observed in Commonwealth v. Wideman, 453 Pa. 119, 123, 306 A.2d 894, 896 (1973): ". . . [T]o be entitled to relief under the Post Conviction Relief Hearing Act, a defendant must prove `that the error resulting in his conviction and sentence has not been finally litigated or waived.' Section 3 of the Act of 1966, supra, 19 P. S. § 1180-3 (d). An issue is waived if `the petitioner knowingly and understandingly failed to raise it . . .' and `the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.' Section 4 of the Act of 1966, supra, 19 P. S. § 1180-4(b)(1) (2)." Instantly, these grounds for relief were apparent on the record at the time of the appellant's direct appeal, and the appellant was represented by counsel other than his trial counsel. The appellant urges no "extraordinary circumstances" in an attempt to justify the failure to raise these grounds when he appealed from the judgment of sentence.
In Commonwealth v. Wideman, 453 Pa. 119, 123, 306 A.2d 894, 896 (1973) the Court stated that "[i]neffective counsel constitutes such `extraordinary circumstances'" under Section 4 of the Post Conviction Hearing Act. One might argue, therefore, that appellant's ineffective assistance of counsel claim precludes the application of waiver to these new grounds. However, on appeal from the judgment of sentence, appellant was represented by counsel other than his trial counsel, and it is trial counsel who is charged with ineffective representation. Further, these grounds for relief are not, on their face, framed in terms of an ineffective assistance of counsel challenge.
In any event, the first two of these new grounds for relief [ (1) denial of due process in that evidence was admitted against the appellant at trial which was found pursuant to an illegal arrest and search; (2) appellant was denied due process in that an unnecessarily suggestive identification procedure was held without counsel present], are in essence the substantive underpinning for the two theories of ineffective assistance of counsel [ (1) trial counsel's failure to move to suppress evidence seized pursuant to an arrest and search and seizure; and (2) trial counsel's failure to move to suppress the out-of-court identification] the merits of which we will consider in the text following this note. See Commonwealth v. Learn, 233 Pa. Super. 288, 335 A.2d 417 (1975). To the extent that the third new ground for relief [appellant did not knowingly and intelligently waive the right to be represented by separate counsel] might be characterized as a challenge to the effectiveness of trial counsel's representation, this would represent a new theory for relief which would be waived. See text following this note.
— B —
Ten of the appellant's sixteen arguments represent new theories in support of the ground for relief — ineffective assistance of counsel. See note 5, supra. These new theories have been waived.
In Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973) and Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972) our Supreme Court held that new theories advanced in support of a petition for post conviction relief were waived when the ground for relief had been previously litigated. The distinction between Commonwealth v. Wilson, supra, and Commonwealth v. Slavik, supra, and this appeal is immediately apparent. Instantly, we have already held that our per curiam affirmance of the judgment of sentence did not "finally litigate" the ground for relief of ineffective assistance of counsel, whereas in both Commonwealth v. Wilson, supra, and Commonwealth v. Slavik, supra, the Court found that the ground for relief had been previously litigated. Nonetheless, we hold that on the facts of this appeal all new theories have been waived regardless of whether the ground for relief was finally litigated.
In Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973) the ground for relief was trial counsel's incompetency. Therein the Court stated: "In this petition the appellant has advanced a new theory in support of his previously litigated contention that he did not receive adequate assistance of counsel. However, as we stated in a similar situation in Commonwealth v. Slavik, 449 Pa. 424, 430, 297 A.2d 920, 923 (1972): `Merely because [appellant] advances a new or different theory as a basis for his previously adjudicated claim does not alter the fact that this precise issue was decided adversely to petitioner in his previous . . . direct appeal.' The appellant raised the issue of the competence of his trial counsel on his direct appeal and that issue was decided adversely to the appellant. The issue is now finally litigated under the terms of the statute and cannot be reopened merely by asserting another theory upon which incompetence could be founded." Id. at 378-79, 305 A.2d at 11 (footnote omitted) (emphasis original).
In Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972) the ground for relief was the "constitutional infirmity" of a guilty plea. Id. at 431, 297 A.2d at 924. Therein the Court stated: "A defendant is not entitled to relitigate the validity of his plea every time he offers a new theory or argument which he had not previously advanced." Id. (footnote omitted).
Accordingly the three theories in support thereof, see note 5, supra, are properly cognizable on appeal. See text following this note.
On direct appeal from the judgment of sentence the appellant was represented by counsel other than trial counsel. All of the facts necessary to frame these new theories were apparent of record at the time of the direct appeal. Although Commonwealth v. Simon, 446 Pa. 215, 285 A.2d 861 (1971) is distinguishable from the present case in that in Commonwealth v. Simon, supra, the ground for relief, ineffective assistance of counsel, was never raised on direct appeal from the judgment of sentence, there is language in Commonwealth v. Simon, supra, the spirit of which is supportive of the application of waiver under the unique procedural circumstances of this appeal. The Court stated: "All of the facts and legal precedents necessary to construct and argue this claim [ineffective assistance of counsel] 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." Id. at 219, 285 A.2d at 863.
Clearly, if we had found merit in the Commonwealth's contention that our per curiam affirmance had finally litigated the ground for relief, ineffective assistance of counsel, under Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973) and Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972), there would be no question that the new theories were waived.
To the extent that our per curiam affirmance was not a "final litigation" of the ground for relief of ineffective assistance of counsel in light of this Court's pre- Dancer posture on claims of ineffective assistance of counsel on direct appeal, see Commonwealth v. Harrison, supra, the appellant was to develop a record to support the three theories briefed on direct appeal and not to construct ten new theories. Prior to Commonwealth v. Dancer, supra, there were cases where ineffective assistance of counsel claims were decided on direct appeal. See Commonwealth v. Levenson, 225 Pa. Super. 318, 303 A.2d 838, allocatur refused, 225 Pa. Super. xlii (1973). As we stated in Commonwealth v. Harrison, supra: "However, where, as here, counsel on appeal is other than counsel at trial and the question of proper representation arguably appears on the record, public policy and the interest of justice dictate that such an issue should be considered on direct appeal." Id. at 44, 323 A.2d at 849 (citation omitted). Arguably, if the appellant, on direct appeal from the judgment of sentence, had briefed all theories relating to the claim of ineffective assistance of counsel, all of which were at that time apparent on the record, this Court might have been persuaded that the record was sufficiently developed such that those theories would have been considered on direct appeal. We hold, therefore, that all theories not constructed at the time of the direct appeal from the judgment of sentence were waived.
III
Three of the appellant's sixteen arguments are cognizable in this appeal. These three arguments represent the three theories briefed on direct appeal from the judgment of sentence. See note 5, supra.
The facts pertinent to the incident out of which the charges against the appellant arose are summarized by Judge LOWE in the opinion in which the appellant's post-trial motions were denied:
"Shortly prior to 11:30 P.M., Thursday, May 4, 1972, defendant Harold Jackson and two conspirators entered a freshman dormitory of the University of Pennsylvania at 3333 Walnut Street, Philadelphia. They enlisted the aid of Louie Mercado, a university student and resident of the dormitory, in the purchase of some marijuana. Mercado, in turn, approached Hume R. Steyer, [the complainant] a fellow student and resident, in the hallway of the fourth (4th) floor at approximately 11:30 P.M. and asked if he had any marijuana. Immediately thereafter, defendant and his accomplices approached Steyer, displayed a large roll of currency, and pressed him for a sale. Steyer conteded he had no marijuana for sale, but in an effort to appease the insistent demands decided to give his accosters one marijuana cigarette in the hope they would desist. "Mr. Steyer entered his room on the fourth (4th) floor of the dormitory followed by Mercado, the defendant, and the two accomplices. The defendant and the two with him shut the door, elevated the volume of a radio, drew handguns which had been concealed previously, and announced a robbery. Steyer and Mercado were directed to remove their shoes, and as Steyer's room was being ransacked, one felon held the business end of a pistol at his temple and another pointed a weapon at Mercado. A small quantity of marijuana and Forty ($40.00) Dollars in currency were taken.
"The three (3) conspirators fled down the stairs to the ground floor. At the lobby desk, the attendant on duty, a dormitory housemaster, directed the three (3) to stop. They continued in their flight, whereupon the housemaster tackled one of them. The captive began to shout, `shoot him, shoot him' to his companions, and the fearful housemaster then released his quarry. "Parting company, one conspirator fled on foot and the other two, one of whom was this defendant, hailed a taxicab. The Philadelphia Police Department was immediately notified of the incident, provided a description of the felons and told of the escape. Subsequently, this defendant and his accomplice Leonard Sapp, since deceased, were apprehended by patrolling police and brought to the stationhouse at 55th and Pine Streets. Mr. Steyer, then at the stationhouse providing a detailed report of the incident to a Detective Brennan, upon seeing the defendant and his conspirator being brought in, immediately sprang from his chair upon this happenstance encounter and spontaneously exclaimed, `there are two of them.'" Commonwealth v. Jackson, Crim. Div. No. 1088 and 1089 (Court of Common Pleas of Philadelphia County, October 23, 1973).
The details of the arrest are more fully developed in the text following this note.
The standard of review employed where an appellant asserts he was tried without the effective assistance of counsel is established by Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967): "Our task in cases of this nature therefore encompasses both an independent review of the record, see Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967), and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives. Perhaps Brubaker v. Dickson, 310 F.2d 30, 38 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S. Ct. 1110 (1963), best describes this necessary process: `Facts are alleged from which it would appear that these potential defenses would have suggested themselves to a reasonably diligent trial counsel. The defense actually tendered was so insubstantial in relation to those not offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice.' We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis." (Footnotes omitted.) (Emphasis original.)
The two theories upon which the appellant bases his claim that trial counsel was ineffective relate to trial counsel's failure to move to suppress evidence. In Commonwealth v. Hill, 231 Pa. Super. 371, 331 A.2d 777 (1974), we observed: "Ordinarily there is little tactical reason for not filing a motion to suppress. We cannot tell from the record why counsel did not file one. It does not follow from this fact, however, that counsel was ineffective. It may be that he saw little chance for success and therefore little benefit to be derived from the motion. Also, he may have regarded the bait money as a relatively small part of the prosecution's case; the police officer who had bought the heroin and the officers who had witnessed the transaction all were ready to and did identify petitioner as the seller. However, it is not important, and we need not decide, what was in counsel's mind; it may even be assumed that his failure to file a motion was an oversight. We have considered what would have been the result if he had filed a motion and have seen that the motion would have been denied, for the arrest was lawful and therefore the search incident to it valid. Counsel will not be declared ineffective for failure to fite a motion that he could reasonably have regarded as pro forma." Id. at 375-376, 331 A.2d at 780 (emphasis added).
In Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975), the Court also analyzed a claim of ineffective assistance of counsel for failure to suppress evidence in terms of "whether or not the motion to suppress would have been futile." Id. at 32, 334 A.2d at 618.
Appellant contends that trial counsel should have moved to suppress the stationhouse confrontation between the complainant and the appellant and his co-defendant. Employing the approach articulated in Commonwealth v. Hill, supra, we are of the opinion, after a complete review of the record, that a motion to suppress this out-of-court identification would have been successful. See generally, Stoutzenberger Appeal, 235 Pa. Super. 500, 344 A.2d 668 (1975). However, it does not follow from this that trial counsel was ineffective. Given trial counsel's defense theory we are unable to conclude that trial counsel's failure to file a motion to suppress the identification had "no" reasonable basis designed to effectuate his client's interests. Commonwealth ex rel. Washington v. Maroney, supra.
However, we believe, after a complete review of the facts surrounding the incident that there would have been a proper basis for an in-court identification of the appellant independent of the police station confrontation. See, Commonwealth v. Burton, 452 Pa. 521, 307 A.2d 277 (1973). The complainant had sufficient time under sufficient lighting to view the appellant at the time of the incident. (N.T. at 133, 155). See Commonwealth v. Wortham, 235 Pa. Super. 25, 342 A.2d 759 (1975).
The defense theory, as explained by the appellant's trial counsel at the post — conviction hearing, was "confession and avoidance." Appellant's trial counsel attempted to prove that the appellant and his co-defendant had gone to the complainant's room to purchase heroin. The theory was that the complainant gave the appellant and his friends "bad stuff." After the appellant left the room he tasted the heroin, realized it was baking soda, and went back for the "good stuff." The appellant then testified that he told the complainant that he would use the Philadelphia "hot line" to turn the complainant in as a pusher. The complainant gave them the heroin (12 packets found on the co-defendant at the time of the arrest) and as a peace offer gave them some marijuana. No marijuana or hashish was ever found or introduced at the trial. Of course the conspirator who fled may have had it. The appellant under this strategy would admit his presence in the complainant's room. We cannot conclude, therefore, that a failure to suppress a one-on-one out-of-court identification placing the appellant in the complainant's room, when at trial the appellant would admit his presence in the room, had "no reasonable basis." Moreover, to the extent that appellant's contention is tantamount to a claim that trial counsel's choice of a defense theory was incompetent, we have examined the record and we cannot conclude "`[t]he defense actually tendered was so insubstantial in relation to those not offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice.'" Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 604, 235 A.2d at 352 (1967) quoting Brubaker v. Dickson, 310 F.2d 30, 38 (9th Cir. 1962), cert. denied, 372 U.S. 978 (1963).
The appellant's second theory upon which he bases his conclusion that trial counsel was ineffective is that trial counsel should have moved to suppress evidence seized pursuant to the arrest and the search and seizure. The appellant contends that there was no probable cause to stop the taxicab and search it. Again, employing the approach articulated in Commonwealth v. Hill, supra, but unlike the motion to suppress the out-of-court confrontation which would not have been futile, we have examined the record and we conclude that a suppression motion would have been futile.
In Commonwealth v. Hill, supra at 374, 331 A.2d at 779, we summarized the applicable legal principles: "A warrantless arrest is justified if based upon probable cause. McCray v. Illinois, 386 U.S. 300 (1967). Probable cause has repeatedly been held to exist, if `the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.' Ker v. California, 374 U.S. 23, 34-35 (1963); Brinegar v. United States, 338 U.S. 160, 175-76 (1949); Betrand's Appeal, 451 Pa. 381, 385, 303 A.2d 486, 488 (1973)."
Instantly, the arresting officers were in possession of a description of the complainant's assailants; a description which they had jotted down when given to them. The officers testified that they spotted the appellant and his co-defendant, who fit the description of two of the complainant's assailants, entering a cab in the vicinity of the scene of the robbery. After complete review of the trial testimony of the arresting officers we conclude that there was sufficient probable cause for the arrest. "The search, in turn, was valid as incident to a lawful arrest. Commonwealth ex rel. Whiting v. Rundle, 414 Pa. 17, 198 A.2d 568 (1964)." Commonwealth v. Hill, supra at 374-375, 331 A.2d at 779. Trial counsel testified at the post conviction evidentiary hearing that he did not feel that there were grounds for a motion to suppress the evidence because of ". . . close proximity of space and time, together with what we were prepared to defend against." (N.T. PCHA at 81-82.) "Counsel will not be declared ineffective for failure to file a motion that he could reasonably have regarded as pro forma." Commonwealth v. Hill, supra at 376, 331 A.2d at 780.
Lastly, the appellant contends that his trial counsel was ineffective because he failed to timely file post-trial motions. Appellant is on record (N.T. at 538) that he wanted post-trial motions filed. Therefore, we are not concerned with any issue of a knowing and voluntary waiver of the right to file post-trial motions. See, Commonwealth v. Coleman, 458 Pa. 324, 327 A.2d 77 (1974). In fact, post-trial motions were filed but they were not considered on their merits because they were not timely filed. See note 1, supra. In view of the fact that the appellant never had his post-trial motions considered on the merits, we grant appellant leave to file his original post-trial motions nunc pro tunc.
Order reversed and case remanded with instructions that appellant be permitted to file his original post-trial motions nunc pro tunc.
VAN der VOORT, J., concurs in the result. SPAETH, J., joins in both the Majority Opinion by JACOBS, J., and in the Concurring Opinion by HOFFMAN, J.
The Majority has correctly applied the principles enunciated by our Supreme Court, and, therefore, I join in the Majority Opinion. Specifically, we hold that only the three instances of ineffectiveness which were raised on direct appeal have been properly preserved; the additional ten asserted instances of ineffectiveness have been waived because they were apparent of record at the time of the direct appeal and thus could have been raised by appellate counsel. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Because they were not, we cannot address the merits.
I would like to point out, however, that the application of these principles in the instant case operates to defeat the goals of judicial economy and the efficient operation of the court system which the waiver doctrine intends. See Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48, 52 (1975). Appellant has already been represented by three different attorneys: trial counsel, appellate counsel, and PCHA counsel. The ineffectiveness of direct-appeal counsel may be challenged in a PCHA proceeding. Commonwealth v. Dancer, supra at 101, n. 4, 331 A.2d at 438, n. 4. There would not seem to be any impediment to challenging the ineffectiveness of a PCHA counsel in a subsequent PCHA proceeding. Thus, appellant may retain a fourth attorney to represent him in a second PCHA proceeding, and will be able to raise the ten issues we hold waived by asserting that the first PCHA counsel was ineffective for failing to raise the ineffectiveness of direct-appeal counsel who was ineffective for only raising three instances of the ineffectiveness of trial counsel when there were actually thirteen instances of trial counsel's ineffectiveness. If appellant's new claims are decided against him, he no doubt will perfect another appeal to this Court.
SPAETH, J., joins in this concurring opinion.