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COMMONWEALTH v. DORIA (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
DORIA, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1959, Nos. 786 and 787, in case of Commonwealth of Pennsylvania v. Anthony Doria.

COUNSEL

Norris E. Gelman, for appellant.

Michael F. Henry, Assistant District Attorney, with him James A. Shellenberger and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this dissenting opinion.

Author: Price

[ 232 Pa. Super. Page 440]

We are here presented with the issue of appellant's eligibility under the Post Conviction Hearing Act*fn1 for relief from a conviction of cheating by fraudulent pretenses and fraudulent conversion on May 5, 1960. He was sentenced to a fine of $150.00 on each bill. This conviction was affirmed by this Court. Commonwealth v. Doria, 193 Pa. Superior Ct. 206, 163 A.2d 918 (1960). Allocatur was refused by the Supreme Court of Pennsylvania.

No further action was taken by appellant until May 30, 1974, when this PCHA petition was filed alleging that the conviction was based solely on perjured evidence; that appellant was denied his right to remain silent at trial; that appellant was denied his right to representation by effective counsel; and that the trial judge was improperly prejudicial. The Commonwealth by its answer denied all allegations but agreed that appellant's allegations, if proven, warranted relief.

The lower court on June 28, 1974, dismissed the petition without hearing and in support thereof relied upon Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), to hold that appellant's claims are presently

[ 232 Pa. Super. Page 441]

    moot. With this conclusion, we agree and therefore will affirm.

The appellant complied with the sentence of the lower court some fourteen years ago and the lower court notes in its opinion that he had never been arrested prior to that conviction or subsequent thereto and that he has never been involved in trouble with the law at any other time in his lifetime.

The Post Conviction Hearing Act provides in its pertinent provisions:

"To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 ...


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