*1
201
436
898,
(Sur.Ct.1959),
196
Hirschhorn, 22 Misc.2d
N.Y.S.2d
604,
(1960);
485
Rosenk
aff’d,
210 N.Y.S.2d
12 A.D.2d
(Sur.Ct.1955); see
Will,
generally
N.Y.S.2d 43
144
ampff's
Estates,
Mich.L.Rev.
the Doctrine
72
Browder, Trusts and
courts
held that excess
Where
have
1507,
(1974).
1568
trust
the instrument has unam
corpus,
added to
income be
income for
that
the trustee accumulate
provided
biguously
legatee.
the
Carr v.
beside
income
the
others
benefit
220,
(1977);
392 A.2d
Pennsylvania,
COMMONWEALTH
MURRAY, Appellant.
Solomon
Supreme
Pennsylvania.
Court
22,
May
1978.
Submitted
5,
Decided Oct.
1978.
disposition,
our
we need not determine whether accumu-
3.
In view of
1947,
April
Act of
Act of
income would violate
Estates
lation of
24, 1947,
301.6,
20
6106.
20 P.S.
now Pa.C.S.A.
See
(400
Estate,
year
Pa.
A.2d
charitable
414
199
275
James
(1949).
Powell,
Property
trust);
We
note
no
Real
also
¶
discretionary authority
question
presented concerning the
has been
some income as a reserve. See Mathues’
trustee to retain
Estate,
Pa.
Appellant, were de- first Post-verdict motions degree. murder to life On imprisonment. was sentenced nied and aby of sentence judgment we affirmed appeal, direct Murray, order. curiam Commonwealth per A.2d 534 374 under the Post then filed a pro
Appellant was Hearing (PCHA).1 appointed Counsel Act Conviction requested was filed. Appellant’s an amended and this hearing an evidentiary was denied without relief followed. appeal 25, 1966, January (1965) P.S. 1180-1 et
1. Act 1977-78). seq. (Supp. believes he was denied the Appellant effective assistance counsel (1) failing witnesses; of trial for to call four defense (2) failing cross-examine a the Common- witnesses; wealth’s failing object to comments about silence at the time of his arrest. We do not of appellant’s claims, reach merits they as have not been properly preserved appellate review. trial,
The facts are as follows. At appellant was repre- by sented private counsel. On direct appeal court, to this appellant was represented by Dauphin County Public se Defender’s Office. When filed his a petition, different counsel was private appointed to assist him in the PCHA proceedings. Appellant represented by this third on this attorney appeal. Dancer, Commonwealth Pa. we held that trial counsel’s effectiveness must be on direct where
challenged appeal counsel was not trial counsel. Failure to do so constitutes a waiver of that claim.
The Post Conviction provides: Act be eligible act,
“To for relief under a person must a proceeding initiate by filing under section 5 and must prove following:
[*] [*] [*] [*] [*] [*] That the error “(d) resulting in conviction and sen- tence has not finally litigated been or waived.” P.S. 1180-3 (Supp.1977-78).
Appellate
direct
did not challenge
effectiveness,
trial counsel’s
thus waiving the issue. For
*4
time,
this
to be
at
cognizable
claim
is
appellant
required
to have challenged
direct
counsel’s effectiveness
raise
trial counsel’s ineffectiveness. Com. ex rel.
failing to
Myers,
Neal v.
424 Pa.
“(a) Any person conviction a post proceeding by filing initiate may act thereof) two verified copies with (together by petition he affidavit, with the clerk of the court which was which is hereby grant- and sentenced said court convicted hear to Subject and determine same. jurisdiction ed section, he file a (b) may of section provisions A be in petition following time. shall petition any forms:
“(1) post The must state that it is a conviction petition petition act and must include the name of the procedure confinement, his an identification of petitioner, place in which the was convicted proceedings conviction, the date of the place entry judgment, the sentence all facts in of the imposed, support alleged based, desired, petition error on which the the relief previous identification of all that the proceedings peti- an tioner has taken to secure relief from his conviction or (Emphasis supplied.) sentence.” in either the or the petition Nowhere amended counseled are facts averred in of the any support appellate counsel’s ineffectiveness. allegation Fox, In Commonwealth v. we se PCHA recognized prison-drawn pro peti Here, however, must be read with liberality.
tions an was to assist and he did file amended appointed allegation which contained no facts in counsel was ineffective. Counsel never appellate satisfy leave to amend sought specificity 5 of the PCHA. brief requirements court, to our counsel claims that present submitted because he failed to raise trial coun counsel was ineffective We believe this fact cannot cure the sel’s ineffectiveness. sufficient facts in the PCHA petition. failure to state provides: Post Conviction Act further The *5 “(b) For the act, purposes an issue is waived if: “(1) The petitioner knowingly and understandingly failed raise it and it could have been raised before the trial, trial, appeal, a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding act; initiated under actually
“(2) The unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.” 19 1180-4. P.S. § The issue has been waived. See 19 P.S. 1180-3(d). Order affirmed.
POMEROY, J., concurs in the order of affirmance, being that the opinion PCHA court committed neither an error of law nor an abuse of discretion in its disposition of the case. MANDERINO, JJ.,
ROBERTS file dissenting opin- ions.
NIX, J., dissents.
ROBERTS, Justice, dissenting.
Under the guise doctrine, waiver the majority denies review of his PCHA allegations of ineffec tive assistance of counsel and violation of the right against self-incrimination because of a technical defect in appellant’s This petition. nineteenth century view of pleading * violates the Post-Conviction Act and distorts prin ciples of waiver.
Section 1180-5(a)(l) of Act requires a petitioner to state “all facts in support of the alleged error on which the petition is based.” Because appellant did not set forth in his petition facts in his allegation of ineffective counsel, assistance of concludes that has waived his To allegations. the contrary, waiver occurs when only fails to raise an party issue at the appropriate * 25, 1966, January Act of seq., 1 et §§ 19 P.S. seq. (Supp.1978). 1180-1 et §§ Clair, time. See Commonwealth to at Com- trial); if not (trial objected error waived *6 (1975) (trial A.2d 213 Blair, 460 Pa. v. monwealth motions as re- if not raised on post-verdict waived error Post Conviction 1123(a)); by Pa.R.Crim.P. quired on direct or not raised Act, (issues properly 1180-4 In his waived). petition, appellant deemed PCHA in counsel; he failed ineffectiveness of what the issue of raised omission was there- facts. His allege underlying to do was but a failure to with the comply pleading not a waiver fore 1180-5 of of the PCHA. requirement review, ignores section majority the denying appellant PCHA, which provides: of the 1180-7 or leave to amend withdraw the may grant “The court shall be allowed time. Amendment any freely No petition substantial justice. may in order to achieve for want of unless the particularity petitioner be dismissed given clarify petition.” is first an to his opportunity Accord, Satchell, v. 430 Pa. Commonwealth 243 A.2d Gates, 429 Pa. (1968); Commonwealth Stokes, A.2d 193 Commonwealth (1968); The of the purpose requirement facts is to alert the PCHA court and the state underlying to the nature allegations Ap raised. Commonwealth that he had been denied effective assist allegation pellant’s this because apparently purpose, ance of counsel satisfied defended merits rather Commonwealth on the than seek the Indeed, for want had the Com particularity. dismissal basis, dismissal sought monwealth court have been under PCHA 1180-7 obliged PCHA would Yet to his permit appellant clarify position. majority to finds now defective without appellant’s petition fatally as clarify required by him the to granting opportunity nor statute. Where neither PCHA court the Common detected recitation of any prejudice wealth facts, it exalts notions of technical certainly sufficiency to his over substance hold that waived pleadings to right neglecting support allegation review by ineffective assistance counsel.
I and would reach dissent the merits of appellant’s allega- tions.
MANDERINO, Justice, dissenting. giving lip After service to this Court’s duty read petitions finds liberally, majority appellant’s peti- tion defective based on a myopic narrow unjustifiably of that I dissent. reading petition. notes,
As the majority appellant’s petition claimed ineffec- tiveness of both trial and appellate counsel. The facts claim of underlying appellant’s ineffective trial counsel are clear. The now holds the claim of ineffective counsel is waived because no facts were alleged to it. It is common sense that appellant’s claim of *7 ineffective appellate was that appellate counsel did not raise an issue he should have raised —trial counsel’s ineffectiveness. Holding appellant’s ineffective counsel claim waived under these circumstances can hardly be called a liberal reading pro se PCHA petition.
I dissent. respectfully Pennsylvania v.
COMMONWEALTH MOLYCORP, INC., Appellant.
Supreme Pennsylvania. Court of
Argued May 1978. Decided Oct. 1978.