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COMMONWEALTH v. LITTLEJOHN (12/29/71)

SUPREME COURT OF PENNSYLVANIA


decided: December 29, 1971.

COMMONWEALTH
v.
LITTLEJOHN, APPELLANT

Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1959, Nos. 1062 and 1063, in case of Commonwealth of Pennsylvania v. John Littlejohn.

COUNSEL

Leonard M. Sagot, for appellant.

Joseph D. Grano and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri.

Author: Barbieri

[ 446 Pa. Page 136]

This is an appeal from the dismissal without a hearing by the Court of Common Pleas of Philadelphia County of appellant's petition under the Post Conviction Hearing Act (PCHA).*fn1

In 1961 appellant was convicted by a jury of murder in the first degree for the poisoning of his wife and sentenced to serve a life term in prison. No direct

[ 446 Pa. Page 137]

    appeal was taken. In May of 1966, appellant filed a PCHA petition, counsel was appointed, a hearing was held and the petition dismissed. Appellant appealed the dismissal to our Court in 1968. Our opinion on that appeal held that appellant had been denied his appeal rights, but we affirmed the dismissal of the petition after a review of the merits. Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969).

In December of 1969 appellant filed the present PCHA petition averring that certain alleged tacit admissions had been used against him at trial. In our view appellant waived this issue when he failed to raise it on the prior counseled PCHA petition and has not proven the existence of any extraordinary circumstance which can justify such failure to raise it as required by Section 4 of the PCHA. Commonwealth v. Corbin, 440 Pa. 65, 67, 269 A.2d 475 (1970).

Moreover, we are satisfied after a review of the record that even if the alleged question were not waived, it would have insufficient merit to warrant the grant of the relief requested.

Order affirmed.

Disposition

Order affirmed.


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