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COMMONWEALTH v. CAMPAS (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
CAMPAS, APPELLANT



Appeal from order of Court of Common Pleas of Luzerne County, Nos. 387 and 388 of 1968, in case of Commonwealth of Pennsylvania v. George Campas.

COUNSEL

Francis P. Burns, Assistant Public Defender, for appellant.

Robert J. Gillespie, Jr., Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Spaeth

[ 232 Pa. Super. Page 349]

Petitioner, George Campas, appeals from a denial without hearing of relief under the Post Conviction Hearing Act, Act of Jan. 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1974-75).

The procedural history of this case is voluminous. Originally, on June 13, 1968, petitioner was convicted by a jury of robbery with accomplice and conspiracy. He then filed two petitions for writ of habeas corpus, which after argument pursuant to a rule to show cause why hearing should not be held were denied without hearings on September 8, 1969, and November 10, 1969. The latter decision was affirmed per curiam. Commonwealth v. Campus, 217 Pa. Superior Ct. 865, 274 A.2d 543 (1970). On February 24, 1970, a motion for arrest of judgment or new trial was denied. A timely and direct appeal to this court resulted in a judgment of non pros. for failure to proceed. On March 17, 1970, petitioner filed a petition for writ of habeas corpus, a petition for writ of coram nobis, and a petition under the Post Conviction Hearing Act, supra. Again, on each petition there issued a rule to show cause why hearing should not be held. After argument each petition was denied without hearing. No appeals followed. The present petition is therefore the second PCHA petition and the sixth request for collateral relief.

I

To be eligible for relief under the Post Conviction Hearing Act a person must show: that he has been convicted of a crime; that he is incarcerated in a Pennsylvania penitentiary, or on parole or probation; that his conviction resulted from an abridgment of a right guaranteed by the constitution or laws of the United

[ 232 Pa. Super. Page 350]

States or Pennsylvania; and that the error resulting in his conviction and sentence has not been fully litigated or waived. PCHA § 3, 19 P.S. § 1180-3.

Petitioner first reiterates the charges of unlawful arrest and use of perjured testimony that he raised in earlier petitions. As these charges were finally litigated then, they cannot serve now to make petitioner eligible for relief. 19 P.S. §§ 1180-3 and 1180-4. See also Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974).

Petitioner next contends that he was denied counsel at the preliminary hearing because his counsel did not represent him alone but also represented the co-defendants. In 1970 the United States Supreme Court held that the preliminary hearing was a critical stage of the prosecution, from which it followed that an accused was constitutionally entitled to counsel at the hearing. Coleman v. Alabama, 399 U.S. 1 (1970). Petitioner's hearing was held in 1968. In Adams v. Illinois, 405 U.S. 278 (1972), the Court held that Coleman should not be given retroactive application. Therefore, in this case there was no need to hold a hearing to determine whether the attention of petitioner's counsel at the preliminary hearing had been so divided as to deny representation to petitioner. As the Pennsylvania Supreme Court said in Commonwealth v. Leamer, 449 Pa. 76, 81, 295 A.2d 272, 274 (1972): "Although the United States Supreme Court held in 1970 that a preliminary hearing is a ...


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