Com. v. Dancer

• Decision Date: 27 January 1975
• Citation: 460 Pa. 95,331 A.2d 435
• Parties: COMMONWEALTH of Pennsylvania v. Mack Ceasar DANCER, Appellant.
• Court: Pennsylvania Supreme Court

Page 435

331 A.2d 435

460 Pa. 95

COMMONWEALTH of Pennsylvania v. Mack Ceasar DANCER, Appellant.

Supreme Court of Pennsylvania.

Jan. 27, 1975.

[460 Pa. 97] Daniel H. Shertzer, Lancaster, for appellant.

Roland L. Buckwalter, Dist. Atty., Lancaster, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This appeal from a denial of relief under the Post Conviction Hearing Act ¹ requires us to determine whether a defendant represented on direct appeal by an attorney other than his trial counsel waives his claim of ineffective assistance of trial counsel by failing to raise that issue on direct appeal. In the circumstances of this case, we hold that failure to raise the issue on direct appeal constitutes a waiver.

In 1971, appellant Mack Ceasar Dancer was convicted by a jury of murder in the second degree. Following denial of post-trial motions, Dancer was sentenced to imprisonment of seven and one-half to fifteen years. After sentencing, Dancer discharged his trial attorney, retained new counsel, and appealed to this Court. Dancer did not claim on direct appeal ineffective assistance of trial counsel. We affirmed. Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973).

On July 9, 1973, appellant initiated the present PCHA proceeding and raised for the first time the claim of ineffectiveness of trial counsel. After a hearing at which Dancer's trial counsel testified, the PCHA court denied appellant relief. This appeal ensued. ² We affirm.

Appellant alleges that at a number of critical junctures during trial, his counsel elected to follow alternatives that had no 'reasonable basis designed to effectuate his client's interests.' Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). He therefore claims denial of effective assistance of counsel. See Post Conviction Hearing Act § 3(c)(6), 19 P.S. § 1180--3(c)(6) (Supp.1974). Appellant asserts the most important of these alleged prejudicial trial deficiencies occurred because counsel relied on a self-defense theory despite Dancer's refusal to admit that he had struck the fatal blow. Counsel's utilization of this defense resulted in failure to exploit alternatives that, appellant claims, might have suggested to the jury that the deceased had not been mortally wounded by appellant. This defense also led counsel to refrain from objecting to portions of the court's charge that were premised on the assumption that the victim's death was attributable to Dancer.

Additionally, Dancer claims that counsel erred by 1) failing to request a charge on involuntary manslaughter, 2) failing to request an adequate charge on the possible verdicts, 3) neglecting to object to presumptions of guilt expressed in the charge, 4) failing to adequately develop the self-defense theory, and 5) failing to present evidence of alternative defenses.

The PCHA court refused to consider the merits of all these claims of counsel's ineffectiveness. It concluded that appellant waived these claims when he failed to raise them on direct appeal. We agree as to all but the last claim of ineffective counsel.

Our Post Conviction Hearing Act provides that, to be eligible for relief under the Act, the petitioner must establish that the claim upon which he seeks relief has not been waived. Post Conviction Hearing Act § 3(d), 19 P.S. § 1180--3(d) (Supp.1974). For purposes of the Act, an issue is waived if the petitioner 'knowingly and understandingly' fails to raise it on direct appeal and it could have been raised on direct appeal. Post Conviction Hearing Act § 4(b)(1), 19 P.S. § 1180--4(b)(1) (Supp.1974). The Act creates a rebuttable presumption that a failure to raise an issue is a 'knowing and understanding failure.' Post Conviction Hearing Act § 4(c), 19 P.S. § 1180--4(c) (Supp.1974). However, if the petitioner can prove the existence of 'extraordinary circumstances' justifying his failure to raise the issue, or can otherwise rebut the presumption of a 'knowing and understanding failure,' the issue is not waived. It may be considered in the PCHA proceeding despite his failure to have raised it on direct appeal. Post Conviction Hearing Act §§ 4(b)(2) and (c), 19 P.S. §§ 1180--4(b)(2) and (c).

The ineffectiveness of appellant's trial counsel could have been raised on direct appeal. Claims of ineffective counsel were recently raised on direct appeal in Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974); Commonwealth v. Hudson, 455 Pa. 117, 314 A.2d 231 (1974); Commonwealth v. Sanger, 453 Pa. 504, 309 A.2d 380 (1973); Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973); Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608, cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973) and Commonwealth v. Hollenbaugh, 449 Pa. 6, 295 A.2d 78 (1973). See also Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973); Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970). Here appellant's failure to raise the issue on direct appeal creates a rebuttable presumption that the failure was 'knowing and understanding' and that therefore the issue was waived. Except as to his claim that counsel failed to present evidence of alternative defenses, appellant has offered no evidence of 'the existence of any extraordinary circumstances to justify his failure to raise the issue,' Post Conviction Hearing Act § 4(b)(2), 19 P.S. § 1180--4(b)(2) (Supp.1974), nor has he offered any evidence that rebuts the presumption that the failure was 'knowing and understanding.' Id. § 4(c), 19 P.S. § 1180--4(c) (Supp.1974). It must be concluded that appellant waived all but one of his claims of ineffectiveness of counsel. He is therefore precluded from now raising those claims in a PCHA petition. ³

In recent case, this Court considered claims of trial counsel's ineffectiveness raised in PCHA proceedings. E.g., Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973); Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973); Commonwealth v. Dennis, 451 Pa. 340, 304 A.2d 111 (1973); Commonwealth v. Mack, 451 Pa. 319, 304 A.2d 93 (1973); Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Our Post Conviction Hearing Act and the principles of judgment finality mandate that claims of ineffectiveness of counsel may only be raised in PCHA proceedings 1) where petitioner is represented on appeal by his trial counsel, for it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness, 2) where the petitioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record, 3) where the petitioner is able to prove the existence of other 'extraordinary circumstances' justifying his failure to raise the issue, Post Conviction Hearing Act § 4(b)(2), 19 P.S. § 1180--4(b)(2) (Supp.1974) or 4) where the petitioner rebuts the presumption of 'knowing and understanding failure.' Post Conviction Hearing Act § 4(c), 19 P.S. § 1180--4(c) (Supp.1974). ⁴

On this record, the PCHA court's conclusion that appellant's claims were waived was proper except as to one claim of alleged counsel ineffectiveness. The sole unwaived claim is Dancer's allegation of counsel's failure to present at trial certain evidence he uncovered during his pretrial investigation. That issue did not and could not appear in the trial record. It was asserted for the first time in the PCHA petition and its resolution required an evidentiary hearing. Therefore it was within the Post Conviction Hearing Act.

Although the PCHA court did not specifically address itself in its opinion to this contention, we conclude from our review of the record that counsel's determination that the evidence in question should not be offered was clearly a strategy decision that had some reasonable basis designed to effectuate his client's interests. We therefore conclude that appellant was not denied the effective assistance of counsel. ⁵

Analysis of the relevancy of the undisclosed evidence requires a review of the facts. In Dancer's direct appeal to this Court we recited those facts:

'At approximately 12:30 a.m. on the morning of October 23, 1971, Albert Tatum, brandishing a knife, entered the house of Suzy Hayes with the announced purpose of killing Elsie Turner, Mrs. Hayes' aunt. Tatum, evidencing some degree of intoxication, searched about briefly for Mrs. Turner and when asked to leave, swung at the Hayes woman with his knife. At this point, Dancer, the appellant, who had been making repairs to a room of the house, armed himself with a knife and intervened, scuffling briefly with the victim (and expelling him from the house). As the door was locked against him, Tatum said, 'Mack you cut me' and 'I'll be back.'

'About 2:30 a.m. Tatum's body was discovered by the Lancaster police on the sidewalk about thirty yards from the Hayes' house. Medical examination revealed he had been dead from one and a half to two hours, and death was caused by a single puncture would in the left mid-thoracic region which resulted in massive hemorrhaging.'

Commonwealth v. Dancer, 452 Pa. 221, 223, 305 A.2d 364, 365 (1973).

The Commonwealth's case, however, contained two apparent inconsistencies. First, the Commonwealth's expert witness testified that death usually results instantaneously from the wound which killed Tatum. Thus it was very unlikely, although not impossible, that Tatum could have walked thirty yards had he been mortally wounded in his scuffle with Dancer. Second, Mrs. Hayes, a Commonwealth witness, testified that after leaving the house, Tatum turned to the right. Tatum's body was found to the left of her home.

In his investigation, trial counsel discovered that Tatum had not walked under his own power to the spot where the police found his body. In fact, upon leaving the house Tatum fell into a parked but occupied car and died. The occupants then drove a few...