Commonwealth v. Brown ( 1983 )

WICKERSHAM, Judge:

This is an appeal from an order denying appellant Brown’s petition filed under the Post Conviction Hearing Act¹ (hereinafter PCHA). We affirm. The pertinent facts are as follows.

On July 14, 1969, two Philadelphia police officers observed Brown leaving the scene of a burglary with a box containing several items, including a television set. When the officers asked Brown to stop, he dropped the box and ran. Brown was stopped and arrested; he subsequently confessed to committing the burglary. A motion to suppress evidence was filed on September 18, 1969 and denied on October 16, 1969 by the Honorable Vito F. Canuso.

On September 22, 1970, Earl Brown was convicted, after a non-jury trial, of the burglary, and of larceny and possession of burglary tools. Post-verdict motions were denied and Brown was sentenced to a term of imprisonment which, in total, was to be not less than two years nor more than ten years, to be served after another sentence he was already serving. Brown then obtained new counsel and appealed to this court, challenging only the sufficiency of the evidence against him. Judgment of sentence was affirmed without a published opinion in Commonwealth v. Brown, 220 Pa.Super. 704, 283 A.2d 88 (1971).

On January 26, 1978, Brown filed an uncounselled PCHA petition alleging the ineffectiveness of his trial and appellate counsel. New counsel was appointed to represent Brown and he filed an amended PCHA petition. After a hearing, the petition was denied. Again, new counsel for Brown was appointed; this appeal followed.

Appellant Brown frames the issues presented in this appeal as follows:

I. Was appellant denied the effective assistance of counsel in the trial court where counsel failed to preserve for appellate review the denial of defendant’s motion to suppress his statement and certain physical evidence?

II. Was defendant likewise denied the effective assistance of counsel on both his direct appeal and hearing under the Post Conviction Hearing Act where neither appellate nor P.C.H.A. counsel alleged trial counsel’s effectiveness in regard to the denial of Appellant’s motion to suppress?

Brief for Appellant at 1.

Brown contends that his prior trial, appellate and PCHA counsel were all ineffective for failing to adequately examine the record and preserve his suppression claim. Brown does not allege any specific irregularity in the lower court’s refusal to suppress his statement or any other evidence. Rather, he argues that counsels’ inattention to the potential validity of his suppression claim is in itself prima facie evidence of ineffectiveness mandating a remand to the lower court, even though he advances no legal or factual reason to support a conclusion that his statement, or other evidence, was improperly taken.

Initially, we note that the Pennsylvania Supreme Court recently stated in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981):

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id. 492 Pa. at 563, 424 A.2d at 1335, see also Commonwealth v. Alexander, 495 Pa. 26, 38, 432 A.2d 182, 187 (1981) (“As successive PCHA petitions are the exceptions, concrete allegations of actual prejudice should be expressed in those petitions. Abstract assertions will not suffice ... petitioner must be able to demonstrate a specific factual predicate for prejudice caused by alleged errors____”)

Section 9545(b)(1) of the PCHA even provides: “The petition must state ... all facts in support of the alleged error on which the petition is based.... ”

Furthermore, we note that: “The burden of establishing the ground upon which post-conviction relief is requested rests upon the person seeking that relief” Commonwealth v. Jackson, 494 Pa. 457, 459, 431 A.2d 944, 945 (1981) quoting Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976) and, “[i]f counsel fails to raise an issue in post-verdict motions or on appeal, he is deemed to be ineffective only if the issue is of arguable merit,” Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980).

In the present case, appellant Brown makes only a general claim that all prior counsel were ineffective. Nowhere does Brown tell us exactly what was wrong with the stewardship and disposition of his suppression motion or how it prejudiced him. Brown fails to allege any meaningful factual predicate at all concerning his suppression claim.² As was stated in Commonwealth v. Bowers, 245 Pa.Super. 214, 369 A.2d 370 (1976):

Thus the case comes down to this: Appellate counsel did not raise certain issues regarding the conduct of the trial. PCHA counsel argues that this shows that appellate counsel was incompetent. He fails, however, to offer to the PCHA hearing judge any evidence that appellate counsel had no reasonable basis for not raising the issues. Such a record offers no reason for us to grant relief.

Id., 245 Pa.Superior at 224, 369 A.2d at 375.

We must reject the abstract, unsupported allegations of prior counsels’ ineffectiveness advanced here.

Order affirmed.

SPAETH and BROSKY, JJ., file concurring opinions.

1 . 42 Pa.C.S. 9541 et seq.

2 . Brown's trial counsel made a motion to suppress Brown’s statement, physical evidence and identifications. The motion was denied, however, there are no notes of testimony from the suppression hearing. Brown now argues that trial counsel, appellate counsel and PCHA counsel were all ineffective for failing to preserve issues related to the suppression hearing. It is certainly true that the absence of a record of the suppression hearing makes appellate review of the suppression court’s decision impossible. Brown has not made allegations that counsel mishandled the suppression motion or that the suppression judge wrongly denied the motion. Failure to make a record of a suppression hearing is not ineffectiveness per se if there were no errors in the suppression decision or problems with the suppression hearing itself.