pcha hearing in Pennsylvania

1975Concurring Opinion by Cercone, J.: While I agree with the majority’s conclusion that appellant is entitled to a PCHA hearing as to the issue of ineffective assistance of counsel, I feel further discussion of this issue is necessary in light of Commonwealth v. Dancer, 460 Pa. 95 , 331 A.2d 435 (1975).

1975Concurring Opinion by Cercone, J.: While I agree with the majority’s conclusion that appellant is entitled to a PCHA hearing as to the issue of ineffective assistance of counsel, I feel further discussion of this issue is necessary in light of Commonwealth v. Dancer, 460 Pa. 95 , 331 A.2d 435 (1975).

1985That task should be undertaken initially by the PCHA hearing court, ‘but only after it has had a chance to review the facts and applicable law as presented by an advocate. ’ ” Id., 493 Pa. at 245 , 425 A.2d at 1107 (quoting Commonwealth v. Baker, 429 Pa. 209, 214 , 239 A.2d 201, 203 (1968) (emphasis in original)). 4 In Commonwealth v. Finley, supra, a panel of this court reviewed an appeal from an order denying PCHA relief and granting appointed counsel’s petition to withdraw.

1985That task should be undertaken initially by the PCHA hearing court, ‘but only after it has had a chance to review the facts and applicable law as presented by an advocate. ’ ” Id., 493 Pa. at 245 , 425 A.2d at 1107 (quoting Commonwealth v. Baker, 429 Pa. 209, 214 , 239 A.2d 201, 203 (1968) (emphasis in original)). 4 In Commonwealth v. Finley, supra, a panel of this court reviewed an appeal from an order denying PCHA relief and granting appointed counsel’s petition to withdraw.

1973Commonwealth v. Dickerson, 449 Pa. 70 , 295 A. 2d 282 (1972); Commonwealth v. Godfrey, 434 Pa. 532 , 254 A. 2d 953 (1969); Commonwealth v. Holl, 434 Pa. 312 , 254 A. 2d 11 (1969).

1973Commonwealth v. Dickerson, 449 Pa. 70 , 295 A. 2d 282 (1972); Commonwealth v. Godfrey, 434 Pa. 532 , 254 A. 2d 953 (1969); Commonwealth v. Holl, 434 Pa. 312 , 254 A. 2d 11 (1969).

1985The Commonwealth contends that under Justice Larsen’s opinion in Commonwealth v. Unger, 494 Pa. 592, 597-98 , 432 A.2d 146, 148-49 (1980), if we determine that defendant was deprived of his right to appeal, we can now dispose of the merits of all issues which were raised in post-verdict motions, and therefore could have been brought in the appeal, even though those issues were not considered at the PCHA hearing below.

1985The Commonwealth contends that under Justice Larsen’s opinion in Commonwealth v. Unger, 494 Pa. 592, 597-98 , 432 A.2d 146, 148-49 (1980), if we determine that defendant was deprived of his right to appeal, we can now dispose of the merits of all issues which were raised in post-verdict motions, and therefore could have been brought in the appeal, even though those issues were not considered at the PCHA hearing below.

1985Commonwealth v. Wilson, 430 Pa. 1 , 241 A.2d 760 (1968).

1985Commonwealth v. Wilson, 430 Pa. 1 , 241 A.2d 760 (1968).

1990In Commonwealth v. Larry Miller, 494 Pa. 229 , 431 A.2d 233 (1981), our Supreme Court stated what must be proven to successfully attack a guilty plea in a PCHA hearing on these grounds. [I]n order successfully to attack a guilty plea in a P.C.

1990In Commonwealth v. Larry Miller, 494 Pa. 229 , 431 A.2d 233 (1981), our Supreme Court stated what must be proven to successfully attack a guilty plea in a PCHA hearing on these grounds. [I]n order successfully to attack a guilty plea in a P.C.

1984In Commonwealth v. Gardner, 480 Pa. 7 , 389 A.2d 58 (1978) and Commonwealth v. Fox, 476 Pa. 475 , 383 A.2d 199 (1978), the Pennsylvania Supreme Court held that when an appellant raising a claim of ineffectiveness of counsel is represented on appeal by that same counsel, we should entertain the claim only if reversible error is apparent on the record.

1984In Commonwealth v. Gardner, 480 Pa. 7 , 389 A.2d 58 (1978) and Commonwealth v. Fox, 476 Pa. 475 , 383 A.2d 199 (1978), the Pennsylvania Supreme Court held that when an appellant raising a claim of ineffectiveness of counsel is represented on appeal by that same counsel, we should entertain the claim only if reversible error is apparent on the record.

1984In Commonwealth v. Gardner, 480 Pa. 7 , 389 A.2d 58 (1978) and Commonwealth v. Fox, 476 Pa. 475 , 383 A.2d 199 (1978), the Pennsylvania Supreme Court held that when an appellant raising a claim of ineffectiveness of counsel is represented on appeal by that same counsel, we should entertain the claim only if reversible error is apparent on the record.

1984In Commonwealth v. Gardner, 480 Pa. 7 , 389 A.2d 58 (1978) and Commonwealth v. Fox, 476 Pa. 475 , 383 A.2d 199 (1978), the Pennsylvania Supreme Court held that when an appellant raising a claim of ineffectiveness of counsel is represented on appeal by that same counsel, we should entertain the claim only if reversible error is apparent on the record.

1989In addition, appellant claims the prosecution introduced “perjured or obviously false testimony.” As to appellant’s now familiar and previously litigated PCHA claim of ineffectiveness of counsel, the threshold issue remains whether this Court should even consider the merits of this appeal in light of the recent Supreme Court decision in Commonwealth v. Lawson, 519 Pa. 504 , 549 A.2d 107 (1988), wherein the Court stated, “We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate

1989In addition, appellant claims the prosecution introduced “perjured or obviously false testimony.” As to appellant’s now familiar and previously litigated PCHA claim of ineffectiveness of counsel, the threshold issue remains whether this Court should even consider the merits of this appeal in light of the recent Supreme Court decision in Commonwealth v. Lawson, 519 Pa. 504 , 549 A.2d 107 (1988), wherein the Court stated, “We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate

1998Furthermore, to merit entitlement to an evidentiary hearing on a claim of ineffectiveness, a defendant must “set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that ... counsel may have, in fact, been ineffective.” *369 Commonwealth v. Pettus, 492 Pa. 558, 563 , 424 A.2d 1332, 1335 (1981). 3 For example, in Travaglia, 541 Pa. at 140-41 , 661 A.2d at 368 , in considering a claim of ineffectiveness of counsel for failure to call witnesses at a PCHA hearing, this Court concluded that, without a showing that the result of the hearing wo

1998Furthermore, to merit entitlement to an evidentiary hearing on a claim of ineffectiveness, a defendant must “set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that ... counsel may have, in fact, been ineffective.” *369 Commonwealth v. Pettus, 492 Pa. 558, 563 , 424 A.2d 1332, 1335 (1981). 3 For example, in Travaglia, 541 Pa. at 140-41 , 661 A.2d at 368 , in considering a claim of ineffectiveness of counsel for failure to call witnesses at a PCHA hearing, this Court concluded that, without a showing that the result of the hearing wo

1984See Commonwealth v. Carson, 503 Pa. 369 , 469 A.2d 599 (1983).

1984See Commonwealth v. Carson, 503 Pa. 369 , 469 A.2d 599 (1983).

1983The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference, (emphasis added) Commonwealth v. Stanton, 294 Pa.Super. 516, 525 , 440 A.2d 585, 590 (1982) (Citations omitted.) In the instant case, the PCH judge did not hear the evidence or see the witnesses, and, although the transcripts of the two hearings were prepared subsequent to the date of his decision and filed with the record in this case, it would be inappropriate for us to make the initial evaluation of their contents or the issues raised. 5 Moreover, without

1983The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference, (emphasis added) Commonwealth v. Stanton, 294 Pa.Super. 516, 525 , 440 A.2d 585, 590 (1982) (Citations omitted.) In the instant case, the PCH judge did not hear the evidence or see the witnesses, and, although the transcripts of the two hearings were prepared subsequent to the date of his decision and filed with the record in this case, it would be inappropriate for us to make the initial evaluation of their contents or the issues raised. 5 Moreover, without

1982If he had done so, counsel argues, he could have submitted to the lower court evidence of guilty plea counsel’s ineffectiveness for not objecting to a colloquy that lacked a factual basis and that “failed to inform the [appellant] that a jury would be chosen from members of the community, that he would have a right to participate in the selection of the jury, that the verdict of the jury would have to be unanimous and that they would have to be satisfied beyond a reasonable doubt of his guilt.” (Appellant’s Brief at 29-30); see Commonwealth v. Willis, 492 Pa. 310, 311 , 424 A.2d 876, 877 (1981

1982Our Supreme Court has retroactively applied the right to independent counsel as defined in Commonwealth v. Crowther, supra. See Commonwealth v. Wright, supra. Further, Crowther already had been decided by the time of the order denying appellant’s pro se PCHA petition, from which order this appeal is taken.

1981(Appellant’s present counsel is not associated with the public defender’s office.) In Commonwealth v. Bundy, 480 Pa. 543 , 391 A.2d 1018 (1978), our Supreme Court held that the appellant was entitled to a new PCHA hearing on his claim of trial counsel ineffectiveness because trial and post-conviction counsel were both members of the public defender’s office.

1981(Appellant’s present counsel is not associated with the public defender’s office.) In Commonwealth v. Bundy, 480 Pa. 543 , 391 A.2d 1018 (1978), our Supreme Court held that the appellant was entitled to a new PCHA hearing on his claim of trial counsel ineffectiveness because trial and post-conviction counsel were both members of the public defender’s office.

1980Commonwealth v. Dancer, 460 Pa. 95, 100 , 331 A.2d 435, 438 (1975); Commonwealth v. Drummond, 238 Pa.Super. 311, 318 , 357 A.2d 600, 604 (1976).

1980Commonwealth v. Dancer, 460 Pa. 95, 100 , 331 A.2d 435, 438 (1975); Commonwealth v. Drummond, 238 Pa.Super. 311, 318 , 357 A.2d 600, 604 (1976).

2015See generally Commonwealth v. Fiore, 665 A.2d 1185, 1191-92 (Pa. Super. 1995).

2015See generally Commonwealth v. Fiore, 665 A.2d 1185, 1191-92 (Pa. Super. 1995).