*1 officers first for the gating arranged transporta- Jenkins tion grandmother of the maternal of the defendant’s child to the station police defendant detained. however, They grandmother; notified the defendant’s she result, As a tried to appear. they was unable locate father, Eventually, they to no avail. secured the pres- but interrogation ence of his uncle room. uncle was fully apprised nephew’s constitutional instructed forthcoming. A second rights any statement before interrupted when the defendant’s father statement was appeared. for the suspect’s was concerned
The defendant’s uncle “informed, filled interested adequately welfare expand refused to simply rule. Jenkins adult” interested adult” rule. We rule a “most McCutchen ad- majority where the writer note in a footnote Jenkins “interested rule that the adult” opinion heres to his earlier nevertheless, view is dictum and obiter improper; sentiments. majority’s indicative otherwise, ruling indicates precise definitive and Until a intact. rule remains adult” “informed and interested Order affirmed.
POPOVICH, J., in the result. concurs Pennsylvania
COMMONWEALTH BROWN, Appellant. Earl Pennsylvania. Superior Court 28, 1982. Oct. Argued 6,May Filed *2 J., Spaeth, concurring filed a opinion. J.,
Brosky, concurring filed a opinion. Chester T. Cyzio, Philadelphia, appellant. Vanderbraak, Sarah Assistant District Attorney, Philadel- phia, Commonwealth, appellee. CERCONE,
Before Judge, SPAETH, President and CA- VANAUGH, WICKERSHAM, BROSKY, BECK and JOHN- SON, JJ.
WICKERSHAM, Judge: This is from denying an order Brown’s filed under the Post Conviction Hearing (hereinafter PCHA). Act1 affirm. pertinent We facts are as follows. 14, 1969, July
On Philadelphia two police officers ob- served leaving Brown the scene aof with a burglary box containing items, several including a television set. When the officers stop, asked Brown to he dropped box and seq. Pa.C.S. 9541 et
ran. arrested; Brown stopped was and subsequently to committing confessed A burglary. sup- press evidence filed on September denied and 1969 by October Vito F. Honorable Canuso. September convicted, Earl Brown was after trial, non-jury and burglary, larceny posses- sion of burglary tools. Post-verdict motions were denied which, was sentenced to term of imprisonment total, two years was to be not less than nor more than years, ten to be served after another sentence he was then obtained counsel and already serving. Brown court, appealed challenging only sufficiency to this against Judgment him. of sentence af- published opinion in Commonwealth v. firmed without Brown, A.2d 88 Pa.Super. *3 26, 1978, Brown filed an uncounselled PCHA January appel- his trial and alleging the ineffectiveness of
petition represent to appointed late counsel. New counsel was petition. After Brown and filed an amended he for Again, denied. new counsel hearing, petition was followed. appeal Brown appointed; presented in this the issues Appellant Brown frames as follows: effective assistance denied the I. Was preserve where counsel in the trial court to of defendant’s motion the denial review physical evidence? and certain statement suppress his effective assist- denied the likewise defendant II. Was appeal and his direct on both ance of counsel Act neither Hearing the Post Conviction under alleged trial nor P.C.H.A. Appellant’s to the denial of regard in effectiveness suppress? Appellant at 1. Brief for and PCHA trial, appellate prior contends
Brown exam- adequately ineffective for all counsel were suppression claim. preserve ine the record allege any specific in the lower court’s irregularity does not suppress any his statement or other evidence. refusal Rather, argues potential counsels’ inattention to suppression prima of his claim is itself validity facie mandating of ineffectiveness a remand to court, no or factual though legal lower even he advances statement, or other support reason to a conclusion that his evidence, improperly taken. Pennsylvania Supreme we note that the Court
Initially, Pettus, recently stated (1981): A.2d of ineffectiveness in a vacuum cannot be Assertions alleging Counsel who is ineffectiveness. prove appropriate hearing set forth an offer to at an
must can con- reviewing facts which a court sufficient have, fact, ineffec- may clude that trial counsel been claims of ineffec- longer tive. This Court will consider of counsel in the tive assistance abstract. 424 A.2d at see also Common-
Id. 492 Pa. Alexander, wealth v.
(1981) (“As exceptions, petitions successive PCHA are expressed of actual should be allegations prejudice concrete not suffice ... petitions. in those Abstract assertions will factual specific must to demonstrate a petitioner be able errors____”) predicate prejudice by alleged caused “The 9545(b)(1) provides: petition of the PCHA even Section support must state all facts in error ... ” based.... *4 Furthermore, establishing note of we that: “The burden ground upon post-conviction requested the relief is person seeking rests the that relief” Commonwealth 457, (1981) Jackson, 459, 944, 494 Pa. 431 A.2d 945 v. 364 quoting Logan, (1976)and, counsel fails to raise issue “[i]f is deemed to be post-verdict appeal, motions or on merit,” if the only arguable ineffective issue is of Common- Wilkerson, 296, 299, 416 A.2d wealth v. case,
In present the appellant Brown makes only gener- al prior claim that all counsel were ineffective. Nowhere does Brown tell us exactly what was the wrong with disposition of stewardship suppression or how it prejudiced him. Brown fails to allege any meaning- ful factual at all predicate concerning suppression claim.2 As Bowers, was stated Commonwealth (1976): Pa.Super.
Thus
case
Appellate
the
comes down to this:
regarding
did not raise certain issues
the conduct
of
that
argues
appel-
trial. PCHA
this shows that
fails, however,
late counsel was
He
to offer
incompetent.
hearing
judge any
the PCHA
evidence that
no
counsel had
reasonable basis for not
issues.
relief.
grant
Such a record offers no reason
us
Id.,
SPAETH concurring: SPAETH, Judge, that the issues Judge I BROSKY agree with second PCHA waived because argues to us been have ineffec- that first PCHA counsel was argue not counsel did counsel was not that arguing tive in But I am ineffective. trial counsel was arguing not that statement, suppress Brown’s counsel made a 2. Brown's trial denied, how- The motion was physical and identifications. hearing. suppression ever, testimony from the no notes there are counsel, and PCHA appellate counsel argues that now to the preserve issues related all ineffective counsel were certainly record that the absence hearing. true It is suppression suppression of the hearing appellate review makes suppression allegations made has not impossible. Brown decision court’s suppression suppression motion or mishandled record of make a Failure to motion. judge wrongly denied the per were se there suppression suppression with the problems suppression decision or in the errors hearing itself. *5 less sure than he is that we have not to nine- ‘'reversed] century BROSKY, teenth hypertechnicality.” At I J. way don’t know the out of the maze we have built. A case suggests down, like this that perhaps it be torn should we should return to the doctrine of fundamental error.
BROSKY, Judge, concurring: I in concur the result. Like the I majority, would affirm appellant’s the denial of Post Conviction Hearing Act (PCHA) petition. However, I so would do on different grounds. The majority states appellant that fails because he has not offered his supporting I allegations; say waived, would his allegations that, are so even were they proved, they would avail him nothing. presented The issues by appellant are: I. Was denied the effective assistance of coun- sel the trial court preserve appellate review denial defendant’s sup- press statement and certain physical evidence? II. Was defendant likewise denied the effective assist- ance of counsel on both direct appeal and hearing under the Post Hearing Conviction Act where neither appellate nor P.C.H.A. counsel trial alleged counsel’s regard effectiveness in appellant’s to the denial of suppress? Appellant argues that trial counsel was ineffective. He also contends that counsel on direct appeal and the first should have counsel’s ineffectiveness. This is where the lies. A error correct statement PCHA petition have argued first PCHA counsel’s ineffectiveness for counsel’s not raising trial inef- fectiveness.
The ineffectiveness of counsel must
be
first
raised at the
subsequent
first
stage
proceedings
appears.
A failure to do so will constitute a waiver
claim
of ineffectiveness. Commonwealth v. Hub-
bard, 472
Pa.
276-7 n.
Another v. petitions. Commonwealth adequate PCHA quate A.2d The first Pa. 420 431 Watlington, trial counsel’s ineffectiveness. alleged only petition PCHA peti- appellant’s court dismissed March the issues had been finding that hearing, tion without direct allege failure to of appellant’s waived because was taken appeal No counsel’s ineffectiveness. appeal ruling. from the Court’s supra, Watlington,
Commonwealth at 432. followed: petition out PCHA thought properly A failing for ineffective counsel was trial alleging that ... that direct Appellant the ... 1) to object to: allege failing for ineffective appeal coun- that P.C.H.A. finally, ineffectiveness on allege sel was counsel. of direct part Id. petition second that this concluded Court Supreme court without by. dismissed have been
should 1180-4(c). Act, P.S. 1. PCHA 4(b)(2). P.S.
2. 1180— a appointment and without the of counsel. That petition, if proven, provided grounds would have for relief. us,
The proven, provide before grounds for relief. The issue trial counsel’s ineffective- ness is at the PCHA petition stage, waived second absent a showing each part of successive counsel for to allege failure the ineffectiveness of each of immediately preceding counsel. Commonwealth,
Not this the only is law of there is also sound reason it. Insistence upon correctly word- ed petition is not a century reversion nineteenth hyper- Rather, technicality pleading. it is to a essential concep- tual of what is grasp actually before the court. What is *7 not before the court hearing second PCHA is the counsel—unless of the intervening counsel3 is also raised. upon
The principle requirement which this is based is that Appellate waiver. will not delve into issues courts not appropriate raised at the prior stage proceedings, of the unless there exists reason compelling doing so. Inef- case, fectiveness of counsel in light a criminal Amendments, Sixth and Fourteenth provides such reason. requirement Nor is this form. It is empty indeed conceivable that trial counsel would have been ineffective in a certain regard; appellate (or PCHA) but that (for not have been raising tactical reasons) trial counsel’s ineffectiveness. Relief at the sec- ond granted cannot be a showing only Other, trial counsel erred. independent, showings must also made be regarding ineffectiveness of each of counsel. successive These showings additional are es- sential. A allege failure to even them in the statement of the issues works a waiver of essential elements of appel- lant’s An case. affirmance the denial of the PCHA is, therefore, in order. (Ineffectiveness in not immediately ineffectiveness of counsel.) preceding