¶1dissenting.
¶2The sole issue raised in this appeal is the propriety of the dismissal of appellant’s PCHA petition without a hearing. The PCHA provides that a petition may be denied without a hearing, “if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petition. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was heard at the original trial or at any later proceeding.” Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580, 19 P.S. § 1180-9. (Repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(2) [1397], effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2, which delayed repeal until June 27, 1981 as further amended by § 1 of Act of June 26, 1981, Act 1981-41).
¶3*368Where an issue is on the face of the record, either finally litigated or waived under section 4 of the PCHA, 19 P.S. § 1180-4, it is properly deemed to be frivolous under the terms of section 9 of the Act. 19 P.S. § 1180-9. The basic objection being raised in the instant case is appellant’s denial of an absolute right of severance. This objection would have obviously been cognizable on direct appeal. However, no direct appeal was taken in this case. Appellant asserted that he was improperly denied his right to appeal. That claim was rejected by this Court. In view of our prior finding in this case, that the right to direct appeal had been effectively waived, any complaint cognizable during a direct appeal has obviously been waived under the terms of section 4. Since that waiver appears on the fact of the record, the court below was correct in concluding that the petition attempting to raise the waived claim was patently frivolous.
¶4The majority seeks to avoid this obvious result by manipulation of the doctrine of ineffective assistance of counsel. Certainly it is true that an ineffectiveness of assistance claim is not waived because it is not raised in a proceeding wherein the appellant is being represented by the counsel whose ineffectiveness is charged. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). However, this principle of law has no applicability to the instant case.
¶5Here this Court has previously determined that there was an effective waiver of appellate review of potential complaints. That decision stands as the law in this case. In that proceeding appellant was in fact represented by counsel other than trial counsel. Thus any ineffectiveness of trial counsel could have been urged as a basis in support of the request for appellate review nunc pro tunc.
¶6It is therefore clear, in my judgment, that the effect of the majority’s ruling today is an implicit overruling of our prior determination in this matter. Such a practice is clearly at variance-with the longstanding jurisprudence of this Commonwealth.