concurring.
I agree that appellant’s conviction must be affirmed, but I believe the majority misperceives the issue raised by appellant. The majority incorrectly represents that appellant now raises “the same issues that this Court decided on direct appeal.” Thus, the majority holds that the issues were fully considered and not open to collateral attack.
Appellant’s present claim has not been raised previously. Appellant raised on direct appeal the issue of whether the trial court improperly instructed the jury on several crimes for which the Commonwealth brought no indictments. The claim appellant now raises is that trial counsel provided ineffective assistance by failing to object to the trial court’s charge. At no earlier opportunity has appellant raised this ineffectiveness. As we have stated “[Representation by ineffective appellate counsel gives rise to an independent basis for relief even where, as here, assessment of the ineffectiveness claim may trigger review of facts examined earlier for entirely different reasons.” Commonwealth v. Hare, 486 Pa. 123, 128, 404 A.2d 388, 390 (1979).
I would hold appellant has waived his new claim of ineffective assistance. Appellant filed his first PCHA petition shortly after his conviction was affirmed on direct appeal. Although represented by new counsel on that petition, appellant failed to challenge the effectiveness of trial *274counsel. Appellant, represented by first PCHA petition counsel, seeks to raise the ineffectiveness. Appellant’s failure to raise the claim at the earliest opportunity where appellant was represented by counsel other than counsel whose effectiveness is being challenged, resulted in waiver of the issue. 19 P.S. § 1180-4; e. g., Commonwealth v. Barlow, 486 Pa. 545, 406 A.2d 1025 (1979).