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COMMONWEALTH v. JOHNSON (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
JOHNSON, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1971, No. 3575, in case of Commonwealth of Pennsylvania v. Calvin Johnson.

COUNSEL

John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.

Louis R. Paulick and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., dissents.

Author: Hoffman

[ 231 Pa. Super. Page 31]

Appellant contends that it was error for the court below to dismiss his petition under the Post Conviction Hearing Act, Act of January 25, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq., Supp. 1971, without holding an evidentiary hearing.

[ 231 Pa. Super. Page 32]

In July, 1971, appellant was tried by a judge sitting without a jury in the Court of Common Pleas of Allegheny County. Appellant was found guilty of attempt with intent to kill, violation of the Uniform Firearms Act, pointing firearms, and obstructing an officer in the execution of legal process. Appellant was sentenced on the first charge to a term of imprisonment of two and one-half to five years. Sentence on the other charges was suspended.

Counsel for appellant filed motions in arrest of judgment and for a new trial subsequent to the verdict of guilt. The court denied the motions in December, 1971. The conviction was affirmed per curiam by this Court, Commonwealth v. Johnson, 221 Pa. Superior Ct. 817, 291 A.2d 913 (1972); allocatur was denied by the Supreme Court on September 20, 1972.

On October 16, 1973, the appellant filed a petition under § 1180-9 of the Post Conviction Hearing Act wherein he alleged incompetent counsel as the sole basis for relief. In March, 1974, the judge who presided at the original trial dismissed the petition without an evidentiary hearing.

In his opinion, the judge based his denial of a hearing on his personal association with the appellant's attorney and on his recollection of the case which he had tried: "The defendant-petitioner was represented by Jacob Shulgold, Esquire. Few attorneys and certainly none currently practicing have had as many, many years criminal trial experience as has Mr. Shulgold. . . . [H]e was recognized as an able trial lawyer and earned himself the respect and esteem of the bar and bench as well. The Court concludes from a clear recollection of the proceedings in this case that in all respects the defendant-petitioner was represented in a highly capable and professional manner by Mr. Shulgold."

[ 231 Pa. Super. Page 33]

Section 1180-9 of the Act provides that "If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner." See, also, Commonwealth v. Davis, 433 Pa. 267, 249 A.2d 766 (1969); Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968); Commonwealth v. Dennis, 427 Pa. 69, 233 A.2d 525 (1967). Our Court has interpreted § 1180-9 as requiring that "petitioners under the Act be given every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing." Commonwealth v. Nahodil, 212 Pa. Superior ...


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