Commonwealth v. Brown

SPAETH, Judge,

concurring:

I agree with Judge BROSKY that the issues appellant argues to us have been waived because second PCHA counsel did not argue that first PCHA counsel was ineffective in not arguing that appellate counsel was ineffective in not arguing that trial counsel was ineffective. But I am *261 less sure than he is that we have not ‘'reversed] to nineteenth century hypertechnicality.” At 840, BROSKY, J. I don’t know the way out of the maze we have built. A case like this suggests that perhaps it should be torn down, and we should return to the doctrine of fundamental error.

BROSKY, Judge, concurring:

I concur in the result. Like the majority, I would affirm the denial of appellant’s Post Conviction Hearing Act (PCHA) petition. However, I would do so on different grounds. The majority states that appellant fails because he has not offered evidence supporting his allegations; I would say that his allegations are waived, so that, even if they were proved, they would avail him nothing.

The issues presented by appellant are:

I. Was appellant denied the effective assistance of counsel in the trial court where counsel failed to preserve for appellate review the denial of defendant’s motion to suppress his statement and certain physical evidence?

II. Was defendant likewise denied the effective assistance of counsel on both his direct appeal and hearing under the Post Conviction Hearing Act where neither appellate nor P.C.H.A. counsel alleged trial counsel’s effectiveness in regard to the denial of appellant’s motion to suppress?

Appellant argues that trial counsel was ineffective. He also contends that counsel on direct appeal and counsel on the first PCHA petition should have alleged trial counsel’s ineffectiveness. This is where the error lies. A correct statement of this PCHA petition would have argued first PCHA counsel’s ineffectiveness for not raising appellate counsel’s ineffectiveness in not raising trial counsel’s ineffectiveness.

The ineffectiveness of counsel must first be raised at the first subsequent stage of the proceedings in which new counsel appears. A failure to do so will constitute a waiver of that claim of ineffectiveness. Commonwealth v. Hubbard, 472 Pa. 259 at 276-7 n. 6, 372 A.2d 687 at 695 n. 6 *262 (1977). The presumption of such a waiver 1 can be rebutted if the petitioner can prove the existence of extraordinary-circumstances justifying his failure to raise the issue. 2

In Commonwealth v. Seachrist, 478 Pa. 621 , 387 A.2d 661 (1978), appellate counsel raised the ineffectiveness of trial counsel. However, there had been an intervening new counsel at the post-verdict stage and appellate counsel failed to allege the ineffectiveness of post-verdict counsel in failing to raise the ineffectiveness of trial counsel. Under these facts, Justice Roberts concluded that “the issue of trial counsel’s ineffectiveness is not properly preserved for appellate review.” Commonwealth v. Seachrist, supra, 478 Pa. at 624 , 387 A.2d at 663 . See also Commonwealth v. Dancer, 460 Pa. 95 , 331 A.2d 435 (1975).

Another Supreme Court case provides examples of inadequate and adequate PCHA petitions. Commonwealth v. Watlington, 491 Pa. 241 , 420 A.2d 431 (1980). The first PCHA petition alleged only trial counsel’s ineffectiveness.

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.

Commonwealth v. Watlington, supra, 491 Pa. at 243 , 420 A.2d at 432 .

A properly thought out PCHA petition followed:

... alleging that trial counsel was ineffective for failing to: 1) object to the ... Appellant 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.

Id.

The Supreme Court concluded that this second petition should not have been dismissed by. the PCHA court without *263 a hearing and without the appointment of counsel. That petition, if proven, would have provided grounds for relief.

The petition before us, if proven, would provide no grounds for relief. The issue of trial counsel’s ineffectiveness is waived at the second PCHA petition stage, absent a showing of ineffectiveness on the part of each of the successive counsel for failure to allege the ineffectiveness of each of the immediately preceding counsel.

Not only is this the law of this Commonwealth, there is also sound reason for it. Insistence upon a correctly worded petition is not a reversion to nineteenth century hyper-technicality in pleading. Rather, it is essential to a conceptual grasp of what is actually before the court. What is not before the court at a second PCHA hearing is the ineffectiveness of trial counsel — unless the ineffectiveness of the intervening counsel 3 is also raised.

The principle upon which this requirement is based is that of waiver. Appellate courts will not delve into issues not raised at the appropriate prior stage of the proceedings, unless there exists a compelling reason for doing so. Ineffectiveness of counsel in a criminal case, in light of the Sixth and Fourteenth Amendments, provides such a reason.

Nor is this requirement an empty form. It is indeed conceivable that trial counsel would have been ineffective in a certain regard; but that appellate (or PCHA) counsel would not have been ineffective in not raising (for tactical reasons) trial counsel’s ineffectiveness. Relief at the second PCHA hearing cannot be granted upon a showing only that trial counsel erred. Other, independent, showings must also be made regarding the ineffectiveness of each of the successive counsel. These additional showings are essential. A failure to even allege them in the statement of the issues works a waiver of essential elements of appellant’s case. An affirmance of the denial of the PCHA petition is, therefore, in order.

. PCHA Act, 19 P.S. 1180-4(c).

. 19 P.S. 1180 — 4(b)(2).

. (Ineffectiveness in not raising the ineffectiveness of the immediately preceding counsel.)