Commonwealth v. Smith
433 A.2d 1349
Pa.
1981
Check Treatment

*1 A.2d 1349 Pennsylvania COMMONWEALTH of Westley SMITH, Appellant.

Supreme Pennsylvania. Court of May

Submitted 1981. July Decided 1981. Reargument Sept. Denied *2 Defender, Zilli, for appellant. C. 1st Asst. Public Marilyn E. MacIntyre, Marion 1st Asst. Dist. William A. Atty., Behe Dist. for Com. Deputy Atty., O’BRIEN, NIX, J., ROBERTS, LARSEN,

Before and C. FLAHERTY, WILKINSON, JJ. KAUFFMAN and

OPINION O’BRIEN, Chief Justice. October, 1972, Smith, was convicted appellant, Westley

by a of murder of the first and jury degree robbery. convictions an appellant arose from incident where and a co-defendant, William Von had beaten to death a barber, Fautz, Harrisburg George and had then taken the victim’s wallet. was informed of both his right file postverdict motions and the appeal immediately verdicts; after the its jury had announced the court guilty then sentenced to life appellant imprisonment.

Although co-defendant Von Smith filed subsequently post- motions, verdict no such motions were filed on appellant’s October, 1973, behalf 1. In the office of contacted trial, represented by Dauphin County 1. At Von Smith was Public Defender, represented by privately while retained counsel. the Public Defender of Dauphin County. Appellant in- formed the assistant public defender retained privately counsel had represented him through the post-verdict mo- tions, but that he lacked sufficient funds to pursue to the Supreme time, Court. At that appellant erroneously believed that motions postverdict had been filed in his case.

The assistant public defender thereafter filed a motion on behalf of appellant seeking the tunc. Appellant alleged that had understood postverdict filed, when, motions fact, had been had not. they Appel- lant contended that private counsel failed to inform appel- lant that no appeal had been taken. The Commonwealth opposed the motion and submitted an affidavit counsel, which stated that no appeal was filed because had never such requested action. The petition to appeal nunc pro tunc was denied our in a per *3 15, curiam order of January June, 1980, filed a petition pursuant to the Act,2 Post Conviction Hearing that he been alleging had denied the effective assistance of trial counsel when counsel failed to file a timely motion to sever trial from appellant’s that of his Appellant co-defendant. further that he alleged had been denied his appellate The rights. petition was denied 29, without an evidentiary 1980, on hearing October and this followed. asserts, alia, now inter the PCHA court

erred in dismissing petition without a The hearing. Post Conviction Act Hearing provides:

“If a petition alleges facts that if proven would entitle relief, the petitioner to the Court shall a grant hearing which to may only extend the issues raised in the petition or answer. the Court may deny if the hearing petitioner’s claim is patently frivolous and is without a trace of either support the record or from other evi- dence submitted the The petitioner. also may deny hearing on a specific question of fact when a full 25, 1966, January 2. Act of seq. P.L. 19 P.S. 1180-1 et § was held question hearing upon evidentiary and fair proceeding.” later any trial or at at the original trial alleges that Instantly, 1180-9. 19 P.S. § for severance. file a motion counsel failed to moved counsel orally jury, the trial selecting Prior to At the his co-defendant. and sever the trials of an absolute trial, there existed appellant’s time of The Legislature cases. in all homicide individually be tried provided: are jointly persons two or more

“In cases in which all the offense, shall be in the discretion it indicted cases that in except severally, them or jointly Court to try the shall have homicide, charged parties the of felonious . . . trials. separate to demand 427, 40, repealed 31, 1860, P.L. 19 P.S. of March § Act 2(a) 28, 1978, P.L. No. Act of April [377]. Pa. untimely. as nonetheless denied judge R.Crim.P. 305 stated: Rules, pretrial applica- no in these

“Except provided as ten before days if less than tion shall be considered made or the did not exist therefor opportunity trial unless grounds aware of the was not attorney defendant or his for the application.” joint knew of the counsel that defense question

There is was called to the case the time that indictments prior the court when fact for noted this prosecutor trial. The severance: argued against first upon motion the Defendant’s oppose

“We would *4 have been charges known these he has the basis that known that He has him for some time. lodged against for some on the trial list together all been listed they have select the are to before the time we time. And now Honor, Your to comes in with a Motion Sever. jury weeks ago.” care of this should have been taken the district or contradict challenge did not Trial counsel failure counsel’s that Appellant argues remarks. attorney’s repre- ineffective to sever constitutes to file a motion timely record. supported adequately sentation and is Appellant’s charged co-defendant his similarly attorney with ineffective to file a representation failing timely Smith, motion for In severance. Commonwealth Von Pa. (1979), 406 A.2d 1034 we examined his counsel’s representation to Com. ex rel. v. Ma- pursuant Washington roney, (1957), 427 Pa. to determine if particular chosen by course counsel had some reasonable basis designed to effectuate client’s interests. After sever, counsel’s reviewing oral motion to we ruled: “Counsel’s untimely for severance request reflected] him that a judgment by separate trial would advance the interests of In light his client. of that there judgment, can be no reasonable basis for this belatedly seeking remedy. Hence was denied effective assistance appellant of trial counsel. . . . Appellant’s was thus a new granted co-defendant trial be- cause the herein alleged exact error as was characterized as infirm constitutionally representation. Smith; of our in Von assertion light holding appellant’s

of ineffective representation cannot be classified as clearly fact, alone, frivolous. In patently standing it would entitle appellant a new trial. unlike Von' this is not the sole issue Herein,

before us. was informed on the record of Nonetheless, his post-verdict rights. post-trial motions or Furthermore, appeal were ever filed. was denied the right nunc tunc this court in 1974. The Commonwealth thus contends waived his right to file an such action in a appeal by failing fashion, and that our denial of appellant’s appeal pro tunc final represents litigation any appealable issue.

Our decision to deny appellant’s petition was founded on trial counsel’s affidavit that appellant did not wish to seek review of his trial. is now advancing argu- ment which concerns the ineffectiveness of trial counsel. In Dancer, Commonwealth v. (1975), 331 A.2d 435 we ruled claims of ineffective of counsel assistance *5 raised for be appeal may on direct raised which are not is represent- where petitioner petition in a first time PCHA these We observed that counsel. his trial by ed on appeal unrealistic to because “it is waived not considered claims are own argue on direct trial counsel expect at 438. Like- at . . . ineffectiveness. of defendant counsel to inform a wise, not expect we do raised in which could be arguments ineffectiveness possible Therefore, this issue and on appeal. motions post-trial a direct appeal. failure to pursue not waived by appellant’s above, petition of trial counsel to stated the failure As we ineffective constituted in a fashion for a severance to a is entitled Accordingly, assistance of counsel. new trial. consist- proceedings case remanded

Order reversed and opinion. ent with this in the

FLAHERTY, J., concurs result. NIX, J., dissenting opinion. files a in which KAUFF- LARSEN, J., dissenting opinion a files MAN, J., joins.

NIX, Justice, dissenting. of the is the propriety issue raised in this

The sole hearing. a PCHA without petition dismissal of appellant’s without a be denied petition may The PCHA provides frivolous and is claim is patently “if the hearing, petitioner’s from other either in the record or without a trace of support also may The court petition. evidence submitted by full and of fact when a question on a hearing specific deny at the was heard upon question evidentiary hearing fair Post Conviction proceeding.” later trial or at original 1580, 19 1966, P.L. P.S. Act, January Act of Hearing 28, 1978, 202, No. P.L. April Act (Repealed by 1180-9. § Act 27, 1980, amended June as 2(2) [1397], effective § 77, 2, 26, 1980, repeal No. which delayed of June P.L. of June 1 of Act 27, 1981 until further amended June as 26, 1981, 1981-41). Act record, finally of the either

Where an issue is on the face *6 PCHA, section 4 of the 19 P.S. or waived under litigated under the 1180-4, it is deemed to be frivolous properly 19 1180-9. The basic terms of 9 of the Act. P.S. section in instant case is appellant’s raised the objection being severance. This right objection denial an absolute of of on direct cognizable appeal. would have been obviously However, was taken in this case. appeal no direct appeal. denied his improperly asserted that was That this Court. In view of our rejected by prior claim was case, had been in this that the to direct finding waived, a direct during any complaint cognizable effectively section has been waived under the terms of obviously record, on the of the the that waiver fact appears Since in the concluding petition below was correct claim was frivolous. patently to raise the waived attempting result by manipu- seeks to avoid this obvious majority ineffective assistance of counsel. lation of the doctrine of it that an ineffectiveness of assistance Certainly is true claim is not waived because it is not raised in a proceeding the counsel being represented by wherein the is v. Tri- charged. whose ineffectiveness is Commonwealth (1977); 476 Pa. 381 A.2d 877 Commonwealth plett, Dancer, (1975). A.2d this 460 Pa. 435 of law has to the instant case. principle applicability there was Here this has determined that previously Court of review of com- appellate potential effective waiver That as the law in this case. plaints. stands decision in counsel fact proceeding appellant represented by Thus ineffectiveness of trial other trial counsel. than as a of the urged support counsel could have been basis in tunc. for appellate review clear, It is in that the effect of my judgment, therefore is an of our majority’s ruling today implicit overruling determination in this matter. is clear- prior practice Such of this at ly longstanding jurisprudence variance-with Commonwealth.

LARSEN, Justice, dissenting. expressed my dissenting opin-

I dissent for the reasons v. Von ion in Commonwealth (Larsen, J., (1979) dissenting).

KAUFFMAN, J., in this joins dissenting opinion.

433 A.2d 1353 Pennsylvania, In re Condemnation the Commonwealth of Legislative Department Transportation Right-of-Way, of *7 R/W, 1080, A05, Legislative Known As Route Section Also F-A05, Highway Spur in Chester Route a Limited Access Township City of and the Chester. CHESTER, Appellant,

TOWNSHIP OF Pennsylvania, COMMONWEALTH of DEPARTMENT OF TRANSPORTATION, Appellee.

Supreme Pennsylvania. Court of

Argued Oct. 1980. July

Decided 1981. Reargument Aug. Denied