485 Pa. 230 - Commonwealth v. Bradley

¶1 *232OPINION OF THE COURT

ROBERTS, Justice.

¶2On May 20, 1969, appellant was tried by a jury on charges of murder of the first and second degree and aggravated robbery. He was convicted of murder of the first degree and sentenced to death. After the appointment of new counsel, appellant took a direct appeal. On September 7, 1972, this Court modified appellant’s sentence to life imprisonment and affirmed the judgment of sentence in other respects. Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). On March 26, 1974, appellant filed a pro se petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, §§ 1 et seq., 19 P.S. §§ 1180-1 et seq., in which he alleged for the first time that he was entitled to a charge on voluntary manslaughter.1 Appellant’s petition was dismissed without appointment of counsel and he appealed. This Court vacated the PCHA court’s order and remanded for the appointment of counsel to assist appellant. Commonwealth v. Bradley, 470 Pa. 602, 369 A.2d 1155 (1977).

¶3On remand to the PCHA court, counsel was appointed and appellant’s petition was amended. The amended petition included the allegation that trial counsel was ineffective in failing to object to the trial court’s jury charge that voluntary manslaughter was not a permissible verdict. The PCHA court held, inter alia, that appellant’s claims were waived because not asserted by newly appointed counsel on direct appeal.

¶4After the denial of his PCHA petition, appellant obtained new appointed counsel who filed this appeal. Appellant argues that the post-conviction court erred in denying his claim that trial counsel was ineffective. He now seeks to augment that claim by alleging here for the first *233time that counsel representing appellant on direct appeal was himself ineffective in failing to allege the ineffectiveness of trial counsel. We may not, however, consider this supplemental claim because it was not presented to the post-conviction court and therefore has not been preserved for review. E. g., Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977).2 In the absence of any adequate explanation for the failure of counsel on direct appeal to claim the ineffectiveness of trial counsel, the PCHA court’s conclusion that appellant waived the claim of trial counsel’s ineffectiveness must be upheld. Post Conviction Hearing Act, 19 P.S. § 118(M(b) & 4(c) (Supp.1978-79).3

¶5The order dismissing appellant’s petition is affirmed.

MANDERINO, J., filed a dissenting opinion.

¶6. Appellant’s brief, at 4, also recites that in 1973 appellant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. That petition was denied without opinion. The record does not reveal the subject matter of the petition.

¶7. Here there is no allegation that former PCHA counsel was ineffective and no other circumstance which would obviate a finding of waiver. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

¶8. None of the factors set forth in Commonwealth v. Dancer, 460 Pa. 95, 100-01, 331 A.2d 435, 438 (1975), as justifications for the failure of counsel on direct appeal to raise the claim of trial counsel’s ineffectiveness are present here.