Commonwealth v. Haynes, Appellant.
Superior Court of Pennsylvania
June 24, 1975
234 Pa. Super. 556
The legislature was aware of the overwhelming problems caused the telephone company by the enactment of the statute prohibiting wiretapping. To сompensate, the legislature also enacted the exception. Bell Telephone Company was merely exercising its options under the statute, and I am somewhat amazed at the ensuing controversy. The exception does not permit indiscriminate wiretapping by law enforcement officers, nor does it allow the fruits of the tapрing to be used for any purpose save that of preventing fraud against the telephone company. The rights extolled by the majority are placed in no danger by these tаpping activities.
The majority, in its conclusion, seems to indicate that to disagree with its conclusion is an act bordering on sedition. I do not so view it, for I do not perceive оur charge to be to so jealously guard the individual that we do damage to the very free society we are sworn to protect. We must, when diverting the sword of justice, be certain our decisions sharpen the tools of justice and not dull them into meaningless objects. I believe the lower court erred in suppressing the evidence obtained by use of the monitoring, and would, therefore, reverse the suppression order and allow the Commonwealth to use the evidence.
John J. McCreesh, III, for appellant.
John D. Cooper, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
OPINION BY HOFFMAN, J., June 24, 1975:
On April 5, 1974, appellant‘s рetition for relief under the Post Conviction Hearing Act.1 was denied by the court below without a hearing. Appellant contends that the court‘s action was an express violatiоn of §1180-7 of the Act.2
The appellant, Lundy T. Haynes, an indigent, was arrested on August 31, 1972, and charged with aggravated
The Commonwealth argues that because all the issues raised in appellant‘s PCHA petition3 had been finally litigated, no evidentiary hearing was requirеd. The Commonwealth points to the fact that appellant‘s claims were litigated in a motion to suppress and on post-trial motions. The Commonwealth argues in its brief that “[u]nder these circumstances, all the issues raised by this petition must be considered finally litigated under the Act. Although appellant was informed of his appellate rights on the record, he did not pursue an appeal, and has never claimed that his appellate rights were denied. Summary disposition is permitted under 1503, Pa. R. Crim. P. when the issues raised on a petition have bеen previously determined adversely to petitioner in a proceeding where he was represented by counsel.” To decide whether the summary dismissal was proper, wе must de-
Section 1180-4 of the Act provides that “(a) For the purpose of this act, an issue is finally litigated if: (1) It hаs been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understandingly failed to appeal the trial court‘s ruling. . . . (b) For the purposes of this act, an issue is waived if: (1) The petitioner knowingly and understandingly failed to raise it and could have raised it before the trial, at the trial, [or] on appeal. . . .” Thereforе, the critical question is whether the appellant‘s choice of procedure—that is, discontinuing his appeal and attempting to raise his claim for relief in a PCHA hearing—was a knowing and understanding waiver of his right to appeal.
Commonwealth v. Whiting, 205 Pa. Superior Ct. 92, 95, 208 A. 2d 1 (1965), held that “The refusal of a new trial is not error where the motion therefor is not filed within the time prescribed by the rules of court. . . . Matters not properly raised in the court may not be invoked on appeal. . . .” Hence, as a general rule, even constitutional claims can be waived if an appellant does not conform to certain procedural rules. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), on the full extent of waiver. In Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 447, 222 A. 2d 427, 429 (1966), this Court, however, noted that there are exceptions to a rule that would otherwise deny an aрpellant access to an appellate court: “‘It is settled law since the decision in Douglas v. California . . . [372 U.S. 353 (1963)], that an indigent defendant is constitutionally entitled to the assistance of counsel on an appeal as of right. Moreover, it is equally settled that a necessary incident of that right is the assistance of counsel in the task of perfecting such an appeal. . . .‘” Id. at 447, 222 A. 2d at 429. It is clear “that an accused is entitled to the assistance of counsel in the
In the instant case, the appellant did not have the assistance of counsel in either the preparatiоn of his PCHA petition or the decision to discontinue his appeal. Counsel did prepare the appeal from the denial of his PCHA petition, but counsel was apparеntly appointed after appellant had made the decision to abandon his appeal and to pursue the alternative route. Obviously, the appellant intended to have a court hear issues that would have been heard for the first time had he continued his appeal to this Court. It is logically untenable to suggest that appellant madе a “knowing and intelligent” waiver—“In order for a waiver to be effectuated, the prisoner‘s nonaction must be a deliberate and understanding bypass of the available . . . procedures.” Commonwealth v. Kravitz, 441 Pa. 79, 84, 269 A. 2d 912, 914 (1970). See also, Fay v. Noia, 372 U.S. 391 (1963). If appellant‘s decision to discontinue his appeal were strategic, then it would have been intentional. But appellant by pursuing the PCHA petition lacked legal guidance concerning the proper manner to perfect his appeal.4 Thus the issues
The case is remanded to the PCHA court for a full hearing.
JACOBS, J., dissents.
CONCURRING AND DISSENTING OPINION BY VAN DER VOORT, J.:
I concur in the granting of a hearing pursuant to the Post Conviction Hearing Act on the claim of ineffective assistance of counsel. However, I dissent from the grant of said hearing on the othеr issues raised.
The majority opinion clearly states that appellant was informed of his appellate rights, including the right to counsel. Furthermore, appellant has not claimed that his appellate rights have been denied.
Therefore, I would hold that appellant‘s choice of discontinuing his appeal was a knowing waiver of his right thereto. Issuеs which were or could have been raised therein are waived for purposes of a subsequent PCHA hearing. While I agree that it is quite clear that appellant was entitled tо counsel‘s assistance to perfect an appeal, this he relinquished. I would not allow him to raise again these issues.
The record being silent as to appellant‘s clаim of ineffective trial counsel, and different counsel having been appointed for the PCHA petition, I would allow a hearing on this issue only, upon the authority of Commonwealth v. Dancer, 460 Pa. 95 (1975).