COMMONWEALTH of Pennsylvania v. Anthony WALLACE, Appellant.
Supreme Court of Pennsylvania.
July 8, 1981
Reargument Denied Aug. 24, 1981.
433 A.2d 856
Submitted April 21, 1981.
Robert B. Lawler, Maureen Brennen, Philadelphia, for appellee.
Bеfore O‘BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN, and WILKINSON, JJ.
FLAHERTY, Justice.
This is an appeal from denial, after a hearing, of relief under the Post Conviction Hearing Act.
Appellant, Anthony Wallace, was indicted on charges of murder, aggravated assault and simple assault (2 counts each), possession of an instrument of crime, criminal conspiracy, prohibited offensive weapons and violation of the Uniform Firеarms Act in connection with the shooting death of Jesse Chalmers in Philadelphia, in June of 1975. Following plea negotiations appellant pleaded guilty, on October 22, 1975, to charges of murder generally, on certification by the District Attorney that the degree of guilt rose no higher than murder of the third degree, and two counts of aggravated assault, for which he was sentenced to 11½ to 25 years imprisonment. No post-verdict motions were filed, nor was an appeal taken.
Appellant rаises three theories to support his claim that his guilty plea was induced by his counsel‘s ineffective assistance: (1) counsel‘s misrepresentation to appellant that he would be eligible for parole after serving one-third of his minimum sentencе; (2) counsel‘s failure to conduct an independent investigation in preparation for trial and (3) counsel‘s failure to petition the court for transfer to juvenile court.
The claims will be addressed seriatim.
At the hearing on the petition, several members of appellant‘s fаmily testified on appellant‘s behalf that they heard appellant‘s counsel tell appellant he would be eligiblе for parole after serving one-third of his minimum sentence. However, appellant‘s guilty plea counsel testified unequivocally, “I didn‘t tell him that.” The lower court opinion states, “We are convinced that defendant‘s trial counsel testified in a strаightforward and credible manner, and we find his testimony worthy of belief.” The hearing court, as trier of fact, resolved the issue of сredibility in favor of guilty plea counsel, and in view of the competent evidence in
The PCHA court did not rule on either of appellаnt‘s other two allegations of counsel‘s ineffectiveness.
Appellant did not raise the claim of counsel‘s ineffeсtiveness for failing to conduct an independent investigation in his PCHA petition or amended petition, but raises it for the first time on this аppeal. (The Commonwealth‘s brief indicates appellant may have addressed this issue for the first time in his memorandum to the lower court after the evidentiary hearing. However, that brief is not included in the record before us). The Commonwealth аrgues, correctly, therefore, that the claim has been waived. Claims of ineffectiveness of prior counsel must be rаised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 277 n.6, 372 A.2d 687, 695 n. 6 (1977), Section 5 of the Post Conviction Hearing Act provides, inter alia, that a petition for relief under the Act must include all facts in support of the allegеd error on which the petition is based.
Furthermore, appellant does not point to any specific harm he suffered as a result of his counsel‘s alleged failure to conduct аn independent investigation. Failure to conduct a more intensive investigation in the absence of any indication that such investigation would develop more than was already known is simply not ineffectiveness. Commonwealth v. Ford, 491 Pa. 586, 592, 421 A.2d 1040, 1043 (1980).
Appellant‘s reliance on Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) is misplaced precisely because Mabie demonstrated there were records and witnesses available to the defense, whereas in the case before us appellant has alleged nо benefit that could have resulted from counsel‘s investigation.
Appellant has presented no claims for which relief should be granted.
The order of the lower court is, therefore, affirmed.
Affirmed.
ROBERTS, J., filed a dissenting opinion in which O‘BRIEN, C. J., joins.
ROBERTS, Justice, dissenting.
For the reasons set forth in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981) (Roberts, J., dissenting), I dissent. As was stated in Pettus, supra,
“[t]he juvenile system inherently confers substantial benefits:
‘[J]udges in the juvenile courts do take a different view of their role than that taken by their counterparts in the criminal courts. * * *
[T]he juvenile system has available and utilizes much more fully various diagnostic and rehabilitative servicеs. * * *
[T]he end result of a declaration of delinquency is significantly different from and less onerous than a finding of criminal guilt. * * *’
Terry Appeal, 438 Pa. 339, 348-49, 265 A.2d 350, 354-55 (1970), aff‘d, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Further, contrary to the majority‘s assumption, the decision not to seek a transfer is not for counsel to make alone. Clearly the decision to forgo the substantial benefits conferred by the juvenile system is crucial and must be shared by the juvenile. See
42 Pa.C.S. § 6355(c) (transfer frоm juvenile to criminal court may be requested by ‘child‘); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to the Defense Function §§ 5.1, 5.2 (Approved Draft, 1971); Comment, Criminal Waiver: The Requirement of Personal Participation, Competence and Legitimate State Interest, 54 Calif.L.Rev. 1262 (1966).“.
Id., 492 Pa. at 565, 424 A.2d at 1336. I would, therefore, remand the record for an evidentiary hearing “at which trial counsel may state his reasons for having chosen the course of action taken.” Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976).
O‘BRIEN, C. J., joins this dissenting opinion.