Commonwealth v. Ryan

concurring.

In this case the majority reaches the correct result but for a wholly improper reason. The majority opinion turns on the use of a guilty plea, citing Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). I disagree with that analysis for two reasons: first, the ineffective assistance of counsel claim impacts upon the validity of the guilty plea. The failure of the trial court to ascertain the actual condition of the allegedly ill Commonwealth witness prevents a finding of manifest necessity required to justify a declaration of a mistrial and the avoidance of a double jeopardy claim upon retrial. Failure of counsel to raise the double jeopardy claim as well as counsel’s acquiescence in a guilty plea under the circumstances of the second trial clearly constituted ineffective assistance of counsel. Thus, our analysis may not rest on the consequences of a guilty plea.

Second, under Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), a second PCHA petition should be dismissed absent a “strong prima facie showing ... that a miscarriage of justice may have occurred.” Lawson, 519 Pa. at 513, 549 A.2d at 112. The abortion of a double jeopardy claim does not in itself represent a “miscarriage of justice.” Such a claim is an affirmative defense and may be waived. Commonwealth v. Gilman, 485 Pa. 145, 401 A.2d 335 (1979); Commonwealth v. Peters, 473 Pa. 72, 373 A.2d 1055 (1977). Ineffective assistance of counsel for failure to plead double jeopardy could have been, but was not, put forward in the first PCHA petition. Thus, the rule of Lawson now applies.

Therefore, for the reasons stated above, I concur in the result of reversing the order of the Superior Court and reinstating the conviction for rape.

PAPADAKOS, J., joins in this concurring opinion.

LARSEN, Justice,