Appeal from order of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, April T., 1963, Nos. 18 and 19, in case of Commonwealth of Pennsylvania v. Earl Williams.
George H. Ross, for appellant.
Charles B. Watkins, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.
[ 214 Pa. Super. Page 419]
Petitioner was indicted on two separate charges of armed robbery -- one committed at Forest Hills and the other at Harmarsville. On April 11, 1963, he pleaded guilty to both indictments and was sentenced to four to eight years on the Forest Hills crime; sentence was suspended on the Harmarsville robbery.
At the time of sentencing, petitioner was on parole from a previously imposed aggregate sentence of five to ten years which was not to be completed until August 3, 1966. He was therefore returned to the State Correctional Institution to serve the balance of that previous sentence.
In December, 1964, he presented a petition for writ of habeas corpus complaining of the inadequacy of counsel; that petition was dismissed without a hearing.
In May, 1965, with benefit of counsel, he presented another petition for writ of habeas corpus, contending his constitutional rights were violated in that (1) he was refused counsel at the police interrogation; and (2) that he was not adequately represented by counsel
[ 214 Pa. Super. Page 420]
at the trial. The lower court, after hearing, dismissed the petition, and this court, on appeal, affirmed the dismissal. Petitioner then petitioned the Supreme Court of Pennsylvania for allowance of appeal, which Petition was denied. He was represented by counsel throughout those proceedings.
On June 3, 1968, Petitioner filed his third Petition. This time he filed a Petition under the Post Conviction Hearing Act alleging and relying on a denial of his right to take and perfect a direct appeal from his conviction. He claimed his trial counsel was ineffective for not advising him of such right of appeal. A hearing was held on that Petition, after which the lower court entered an order dismissing the Petition, setting forth its reasons for the dismissal in an Opinion in which it stated that though there was no doubt that Petitioner had not been advised of his right of appeal, there was no showing that he had any basis for such appeal. The lower court determined that the sentence was lawful and the guilty plea had been voluntarily and intelligently made with representation of counsel, and therefore the allowance of a motion for a new trial nunc pro tunc would be useless and unnecessary.
After our independent study of the case, we affirm the lower court's denial of the Petition on the reasoning that under the facts of this case, Petitioner waived his right to now allege denial of right of appeal by having filed two previous Petitions for collateral relief, and having had the benefit of counsel on the most recent one all the way to the Supreme Court of Pennsylvania, without making any mention of that issue in previous Petitions and not making any explanation for such failure to earlier assert the new contention. In Commonwealth v. Adams, 212 Pa. Superior Ct. 150, we ...