Commonwealth v. Coburn

BROSKY, Judge,

concurring:

While I agree with the result reached by the majority, I note that appellant has also raised the issue that there was additional evidence of other crimes to which defense counsel was ineffective for not objecting. Although appellant did not raise this issue in the “statement of questions, involved” portion of his brief, he has incorporated it into his argument that the trial court erred in failing to declare a mistrial when the Commonwealth introduced evidence of other crimes. For the reasons that follow, I would find that the issue has been waived.

First, appellant did not raise the issue his statement of matters complained of on appeal. See Pa.R.A.P. 1925(b). In order to preserve an issue of ineffectiveness of counsel, it must be raised at the earliest stage of the proceedings in which the defendant is represented by counsel other than that whose effectiveness is challenged. Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980).

Instantly, appellant had been appointed new counsel approximately three months before the filing of the statement of matters complained of on appeal. Arguably, this could be considered the first stage at which the ineffectiveness issue should have been raised. Had it been so raised, the lower court, if it had been necessary, could have held an evidentiary hearing on the issue and dealt with it in its opinion filed pursuant to Pa.R.A.P. 1925(a).

In any event, the issue unquestionably has been waived under Pa.R.A.P. 2116(a). This rule provides in relevant part as follows:

The statement of the questions involved must state the question or questions in the briefest and most general terms... This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.

As noted above, no issue of ineffective assistance of counsel is set forth in appellant’s statement of questions involved nor is suggested thereby. Thus, I conclude that this issue has been waived. See Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795 (1983).