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COMMONWEALTH v. ADAMS (03/21/68)

decided: March 21, 1968.

COMMONWEALTH
v.
ADAMS, APPELLANT



Appeal from order of Court of Quarter Sessions of Philadelphia County, Feb. T., 1966, Nos. 450, 451, and 452, in case of Commonwealth of Pennsylvania v. Alexander C. Adams.

COUNSEL

Alexander C. Adams, appellant, in propria persona.

Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 212 Pa. Super. Page 151]

Appellant, Alexander C. Adams, was found guilty of aggravated robbery on April 25, 1966. He was sentenced to a term of not less than two nor more than five years.

On August 3, 1966, appellant filed a petition under the Post Conviction Hearing Act alleging the denial of his constitutional right to representation by competent counsel. On September 15, 1966, a hearing was held, at which appellant was represented by counsel. The petition was dismissed and no appeal was taken therefrom.

On April 13, 1967, appellant filed a second petition under the Act alleging the same contention made in the petition of August 3, 1966 and also alleging, for the first time, that he was not informed of his right to assistance of counsel on appeal. A hearing was held on May 31, 1967, at which appellant was represented by counsel. The petition was denied on July 5, 1967, and from that denial this appeal follows.

The Commonwealth contends that appellant has finally litigated his right to assert incompetent trial counsel and has waived his right to assert the denial of assistance of counsel on appeal pursuant to ยงยง 3(d) and 4 of the Post Conviction Hearing Act. We agree.

Section 3(d) states that a person is only eligible for relief if he proves: "That the error resulting in his conviction and sentence has not been finally litigated or waived." Section 4(a)(1) states that an issue is finally litigated if: "It has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understandingly failed to appeal the trial court's ruling; . . ." Section 4(c) states: "There is a rebuttable presumption

[ 212 Pa. Super. Page 152]

    that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."

It is true that our courts have stated that the doctrine of res judicata is inapplicable to habeas corpus proceedings. Commonwealth ex rel. Bordner v. Russell, 422 Pa. 365, 221 A.2d 177 (1966). Thus, a petitioner could file numerous repetitive petitions and the court would have to determine whether the writ should issue in each case. To avoid this problem and yet accord substantial justice, our Courts devised a concept which amounted to a qualified res judicata. Accordingly, it became settled ". . . that absent unusual circumstances or intervening change of law, a court may refuse to ...


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