Com. v. Nelson
| Decision Date | 05 April 1980 |
| Citation | 489 Pa. 491,414 A.2d 998 |
| Parties | COMMONWEALTH of Pennsylvania, v. Harold D. NELSON, Jr., Appellant. |
| Court | Pennsylvania Supreme Court |
Floyd P. Jones, Asst. Dist. Atty., for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN and FLAHERTY, JJ.
This is an appeal from an order entered in the Court of Common Pleas of York County, Criminal Division, denying appellant's petition for post-conviction relief.
Appellant, Harold D. Nelson, Jr., was convicted following a bench trial, of murder of the third degree for the killing of Heidi L. Myers, a five-month old infant. Post-verdict motions were filed and denied, and on December 20, 1976, judgment of sentence of six to fifteen years imprisonment was imposed. No direct appeal was taken.
On July 25, 1977, appellant filed a petition pursuant to the Post-Conviction Hearing Act, 1 in which he apparently advanced three grounds in support of his prayer for relief: that he had been denied his right to appeal; that he had been denied his right to testify in his own behalf; and that he was incompetent to stand trial. Counsel was appointed to represent appellant and directed by the court to file such "formal amendments" to the petition as he deemed advisable. None was filed.
On January 5, 1978, a hearing was held on appellant's petition for post-conviction relief. At the hearing, counsel for appellant informed the court that in light of the record he would not argue that issue raised in the petition which alleged appellant had been denied his right to testify in his own behalf. Moreover, counsel for appellant presented neither argument nor testimony in support of the two remaining issues advanced in the petition; indeed, their very existence was unacknowledged.
Notwithstanding counsel's failure to file an amended petition, counsel seized the opportunity presented by the post-conviction hearing to argue two new issues: that trial counsel had been ineffective for failing to move to suppress a confession given by appellant to a Pennsylvania State Police officer; and that "counsel was ineffective because he didn't intervene in the examination of (appellant) by Dr. Laucks (a psychiatrist who conducted an examination of appellant at the behest of the Commonwealth and testified as a prosecution witness at trial)." Testimony was taken and argument was entertained on these issues following which the court denied the petition. From the denial of appellant's petition for post-conviction relief this appeal was taken. 2
Three arguments are urged upon us: that trial counsel was ineffective for failing to move to suppress appellant's confession to police; that trial counsel was ineffective for failing to move to suppress and/or object to statements made by appellant to a psychiatrist who examined appellant on behalf of the prosecution; and that trial counsel was ineffective in failing to request a hearing on appellant's competency to stand trial.
The Post Conviction Hearing Act (PCHA) requires, inter alia, that a petitioner demonstrate "(t)hat the error resulting in his conviction and sentence has not been finally litigated or waived." 19 P.S. § 1180-3(d). Our initial obligation, then, is to determine which among those issues raised at various times in the progress of the instant case have been properly preserved for our review.
The three issues raised in appellant's pro se petition were abandoned, either expressly or by non-argument at the PCHA hearing. Generally issues, though raised in a PCHA petition, which are not pursued at the time of the hearing are waived. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Bowen, 455 Pa. 152, 314 A.2d 24 (1974). This general principle may not, however, apply where the issue is one asserting a lack of competency to stand trial. See discussion, infra.
The three issues advanced in appellant's brief in this court assail the effectiveness of the representation provided appellant by trial counsel. Issue one assigns as ineffectiveness trial counsel's failure to move to suppress appellant's confession to the police. Issue two asserts as ineffectiveness trial counsel's failure to "suppress (. . .) and/or object (. . .)" to the admission of inculpatory statements made by appellant to a psychiatrist. The alternative claim advanced in issue two, viz. trial counsel was ineffective for failure to move to suppress the statements made to the psychiatrist, has not been presented at any stage heretofore, and is, thus, waived. Commonwealth v. Ligon, 454 Pa. 455, 314 A.2d 227 (1973).
The two broader assignments of ineffectiveness were raised for the first time at the hearing. It is, of course, true that failure to have alleged ineffective assistance of counsel on a direct appeal, or, as instantly, failure to have taken a direct appeal at all, will not act as a waiver of the claim where the same attorney represented appellant at both the trial and post-trial stages. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). It is also well settled that claims of ineffective assistance of counsel may be raised in a collateral attack. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976).
Neither of the above principles, however, contravenes the basic proposition that "ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant." (Emphasis added.) Commonwealth v. Hubbard, 472 Pa. 259, 277 fn. 6, 372 A.2d 687, 695 fn. 6 (1977).
In Commonwealth v. Mitchell, 477 Pa. 274, 383 A.2d 930 (1978), Pa.R.Crim.P. 1506(4), we "refuse(d) to consider anything not raised in a counseled petition." Id. [489 Pa. 496] at 280-281, 383 A.2d at 933. In Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978), we noted that "Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), and its progeny require a certain degree of specificity to preserve issues for appellate review, and . . . we believe such specificity must be met before the evidentiary hearing . . ." Wilson, supra, 393 A.2d at 1143. 3
Although we acknowledge that the procedural history of the instant case is not identical with the procedural histories of either Wilson, supra, or Mitchell, supra, we do not believe that the principle enunciated in those cases is subordinate to their peculiar facts. In the instant case the pro se petition filed by appellant was forwarded by the court to counsel appointed to represent petitioner to provide "the opportunity to consult with counsel and to amend this petition to be sure that all grounds for relief have been stated." A petition was filed seeking a thirty-day extension of time within which to amend the PCHA petition. The petition was granted by the court. Nevertheless no amendments were made. We are constrained to conclude that the requirement of "specificity" which we stated in Wilson, supra, "must be met before the evidentiary hearing", was not met in the instant case the issues alleging ineffectiveness of trial counsel have not been properly preserved for our review.
We turn to the third issue presented to us in this appeal, and the third issue raised in appellant's pro se PCHA petition, although abandoned by counsel at the hearing: the issue of appellant's competency to stand trial.
We have long held that "the mental competence of an accused must be regarded as an absolute and basic condition of a fair trial." Commonwealth v. Bruno, 435 Pa. 200, 205 [489 Pa. 497] n.1, 255 A.2d 519, 522 n.1 (1969). Accordingly we have been loath to find a waiver of such a claim. Commonwealth v. Marshall, 456 Pa. 313, 318 A.2d 724 (1974). Indeed, we have recently held that "when the issue presented is whether a person was competent to stand trial, the waiver rule is not applicable." Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995, 997 (1979).
It is, of course, true that Tyson, id., and Marshall, supra, were direct appeals, and while Bruno, supra, was a collateral attack, it was not a PCHA petition. Nevertheless, our waiver doctrine, although judge-made and not statutory, is one we stringently apply. We have expressly discarded the "fundamental error" rule. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Thus, while not recognizing fundamental error, we nevertheless will not permit the waiver of a claim of incompetency, so basic is it to our concepts of justice that a trial of an incompetent is no trial at all. Although we recognize the PCHA includes a waiver provision of its own, 19 P.S. § 1180-3(d) having held the competency of an accused to be an absolute and basic condition of a fair trial, we further hold the no-waiver rule in Tyson to be applicable here as well.
Instantly no competency hearing was held, nor was one requested. The issue as it had survived for us, then, is not whether appellant would have passed the two-pronged test for competency, 4 it is rather only whether his counsel was ineffective for failing to raise the claim that he would not.
Since counsel elected not to argue this issue at the PCHA hearing, we have no record before us relevant to the claim of incompetency. The two psychiatric evaluations which are of record are concerned with the question of insanity and legal culpability. These are not the same as competency to stand trial. There is, moreover, no evidence of record indicating what information relative to appellant's competency may have been available to counsel, or what considerations prompted counsel not to seek a hearing on the issue.
Accordingly, the case is remanded for an evidentiary hearing to determine whether trial counsel had "any reasonable basis" for foregoing a claim of "arguable merit". Commonwealth v. Hubbard, supra. Following such hearing should the court determine trial counsel was ineffective for not...
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Com. v. Brown
...knowing and understanding, our Court affirmed the order of the PCHA court.11 We elaborated on that proposition in Commonwealth v. Nelson, 489 Pa. 491, 414 A.2d 998 (1980). There, the Court addressed an appeal from the denial of relief under the PCHA. The appellant raised the issue of whethe......