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COMMONWEALTH v. MACK (05/04/73)

decided: May 4, 1973.

COMMONWEALTH
v.
MACK, APPELLANT



Appeal from order of Superior Court, April T., 1971, No. 251, affirming order of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1967, No. 127, in case of Commonwealth of Pennsylvania v. James Mack.

COUNSEL

Timothy J. Sullivan, Jr., and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.

Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

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

Author: Roberts

[ 451 Pa. Page 320]

Appellant, James Mack, on September 1, 1967, was arrested and charged with possession of narcotics. No pretrial motion to suppress evidence was filed; however, at trial, the court permitted appellant's retained counsel to file an oral motion to suppress the narcotics (seized pursuant to a warrant). This motion, after an evidentiary hearing, was denied. Thereafter, on March 19, 1969, appellant was found guilty, as charged, by the court, sitting without a jury. On June 23, 1969, appellant was sentenced to serve a two-four year term of imprisonment. No post-trial motions were filed and no appeal taken.

On September 24, 1970, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, §§ 1 et seq., 19 P.S. §§ 1180-1 et seq. (Supp. 1972), alleging (1) the use of illegally seized evidence at trial; (2) ineffective assistance of counsel and; (3) an obstruction of his appellate rights. An evidentiary hearing was held on January 7, 1971, at which time appellant was represented by appointed counsel. On January 20, 1971, appellant's petition was denied. An appeal to the Superior Court resulted in an opinionless per curiam order of affirmance. This Court granted allocatur and we now affirm.

Appellant here contends that the PCHA (Post Conviction Hearing Act) court erred in two respects; (1) by finding that probable cause existed to sustain the issuance of the search warrant, and (2) by finding that the issue had been waived, since appellant knowingly and intelligently failed to take a direct appeal. We agree with the court below that the legality of the search cannot now be raised.*fn1

[ 451 Pa. Page 321]

Section 3 of the PCHA mandates that "[t]o be eligible for relief under this act, a person must . . . prove

[ 451 Pa. Page 322]

. . . [t]hat the error resulting in his conviction and sentence has not been . . . waived." Act of January 25, 1966, P. L. (1965) 1580, § 3, 19 P.S. § 1180-3 (Supp. 1972). The Act further provides that an issue is waived if:

"(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in ...


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