                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia


DANNY HAROLD PFALLER
                                          MEMORANDUM OPINION * BY
v.   Record No. 1403-99-2                  JUDGE MARVIN F. COLE
                                               JULY 25, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   Herbert C. Gill, Jr., Judge

          John B. Boatwright, III (Boatwright & Linka,
          on brief), for appellant.

          (Mark L. Earley, Attorney General; John H.
          McLees, Jr., Senior Assistant Attorney
          General, on brief), for appellee.


     Danny Harold Pfaller, appellant, appeals his conviction for

second degree murder.   He argues that a manifest injustice

occurred when appellant's trial counsel failed to object to the

admission into evidence of hearsay statements from a codefendant.

Appellant asks us to reverse his conviction and remand the case

for a new trial.   Because appellant raises an ineffective

assistance of counsel claim, which cannot be raised on direct

appeal, we dismiss the appeal without prejudice.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                 FACTS

     Appellant was convicted of second degree murder in the

beating death of the victim.   During appellant's trial, Officer

Kelly Barton testified she interviewed Melissa Tipton, a

codefendant, at the scene of the crime.    Barton's testimony

recounted Tipton's statements made to Barton, wherein Tipton

stated she saw appellant choke and stab the victim, then drag him

to the area where he was later found.     Appellant's counsel

initially objected to the admission of Barton's testimony, but

later stated, "I don't have a problem with these statements."

Barton then testified concerning the statements, and appellant's

counsel did not object to the testimony.

     Detective Murray Ash, Jr. testified he later interviewed

Tipton regarding the incident.    Ash testified concerning the

contents of Tipton's statements.    Again, Tipton stated that

appellant attacked the victim and beat him.    Tipton also said she

saw a knife in appellant's hand during the incident.    Appellant's

counsel did not object to the admissibility of Ash's testimony

concerning Tipton's statements.

                               ANALYSIS

     Appellant contends that the evidence of Tipton's statements

was inadmissible hearsay pursuant to Lilly v. Virginia, 527 U.S.

116 (1999).   Acknowledging that his trial counsel failed to object

to Barton's and Ash's testimony, appellant asserts that the issue

on appeal is whether this failure worked on him a manifest

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injustice. 1   See Rule 5A:18.   However, in asserting his claim of

manifest injustice, appellant makes assertions such as "[a]ny

reasonably competent and experienced practitioner of criminal

defense should have been well aware that" the Lilly appeal was

pending before the United States Supreme Court; "[a] proper

objection would have still allowed defense counsel latitude to

explore whatever small benefits he could have reaped from . . .

Tipton's statements, and would have preserved [appellant]'s

right to seek a new trial . . ."; "[i]nstead, trial counsel

inexplicably not only failed to act, but acquiesced in the

admission of the evidence . . ."; "[o]nce again . . .

[appellant]'s counsel failed to live up to his professional

responsibilities and to protect [appellant]'s right to a fair

trial.   Clearly, if [appellant]'s counsel had objected to the

[evidence], [appellant]'s chances of having his petition granted

and his conviction reversed by this Court would be very good."

Furthermore, appellant argues, "to penalize [appellant] for his

trial counsel's unbelievable lack of attention to his duty as

[appellant]'s counsel would be unfair and unjust."

     It is clear that appellant makes an ineffective assistance

of counsel claim on appeal to this Court.     Claims of ineffective

assistance of counsel may no longer be raised on direct appeal.


     1
       At the writ panel stage of this proceeding, appellant
raised additional issues in his petition for appeal. With the
exception of the instant issue, the other issues were dismissed
under Rule 5A:18.

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Code § 19.2-317.1, which allowed direct appeal of such claims

under certain circumstances, was repealed in 1990. 2   See 1990

Va. Acts, c. 74.   See also Walker v. Mitchell, 224 Va. 568, 299

S.E.2d 698 (1983); Hall v. Commonwealth, 30 Va. App. 74, 82, 515

S.E.2d 343, 347 (1999).

     In Walker, the Supreme Court of Virginia discussed its

reasoning for establishing a rule restricting to habeas corpus

proceedings the litigation of claims of ineffective assistance

of counsel.   The Court stated:

               From the standpoint of an attorney
          charged with ineffective representation, the
          ordinary criminal trial record is
          insufficient to show the reasons counsel
          employed or did not employ a particular
          trial tactic. Often, actions that appear
          inexplicable are made readily understandable
          when the actor is given a chance to explain.

               A separate habeas corpus proceeding
          affords both sides an opportunity to develop
          fully the factual and legal bases of their
          positions with respect to a claim of
          ineffective assistance of counsel. Using
          affidavits where appropriate . . . or a
          plenary hearing when necessary . . ., the
          parties can produce a complete record, one
          that will permit an intelligent disposition
          of the habeas petition both in the trial
          court and on appeal.

Walker, 224 Va. at 571, 299 S.E.2d at 699.   The Court held that

the defendant was not entitled to have his claim heard on direct



     2
       Former Code § 19.2-317.1 stated: "A claim of ineffective
assistance of counsel may be raised on direct appeal if assigned
as error and if all matters relating to such issue are fully
contained within the record of the trial."

                                  - 4 -
appeal and dismissed the appeal as "improvidently awarded."   Id.

at 571, 299 S.E.2d at 700.

     For these same reasons, we dismiss appellant's appeal

without prejudice.

                                                    Dismissed.




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