Commonwealth v. Jackson

Concurring Opinion by

Hoffman, J.:

The Majority has correctly applied the principles enunciated by our Supreme Court, and, therefore, I join in the Majority Opinion. Specifically, we hold that only the three instances of ineffectiveness which were raised on direct appeal have been properly preserved; the additional ten asserted instances of ineffectiveness have been waived because they were apparent of record at the time of the direct appeal and thus could have been raised by appellate counsel. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Because they were not, we cannot address the merits.

I would like to point out, however, that the application of these principles in the instant case operates to defeat the goals of judicial economy and the efficient operation of the court system which the waiver doctrine intends. See Commonwealth v. Mitchell, 464 Pa. 117, 346 *144A.2d 48, 52 (1975). Appellant has already been represented by three different attorneys: trial counsel, appellate counsel, and PCHA counsel. The ineffectiveness of direct-appeal counsel may be challenged in a PCHA proceeding. Commonwealth v. Dancer, supra at 101, n.4, 331 A.2d at 438, n.4. There would not seem to be any impediment to challenging the ineffectiveness of a PCHA counsel in a subsequent PCHA proceeding. Thus, appellant may retain a fourth attorney to represent him in a second PCHA proceeding, and will be able to raise the ten issues we hold waived by asserting that the first PCHA counsel was ineffective for failing to raise the ineffectiveness of direct-appeal counsel who was ineffective for only raising three instances of the ineffectiveness of trial counsel when there were actually thirteen instances of trial counsel’s ineffectiveness. If appellant’s new claims are decided against him, he no doubt will perfect another appeal to this Court.

Spaeth, J., joins in this concurring opinion.