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COMMONWEALTH v. GREEN (04/22/75)

decided: April 22, 1975.

COMMONWEALTH
v.
GREEN, APPELLANT



Appeal from order of Court of Common Pleas of Montgomery County, Oct. T., 1973, No. 444, in case of Commonwealth of Pennsylvania v. Anthony Green.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, for appellant.

Stewart J. Greenleaf and J. David Bean, Assistant District Attorneys, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

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

Author: Cercone

[ 234 Pa. Super. Page 238]

On February 19, 1974, appellant pleaded guilty to charges of burglary and larceny. He was sentenced and no direct appeal was taken. While serving his sentence appellant filed a petition pursuant to the Post Conviction Hearing Act.*fn1 The PCHA court denied appellant a hearing stating that there was no merit whatsoever in the appellant's PCHA petition.*fn2 The appellant is now appealing the decision on the PCHA petition.

Appellant's primary claim is that the on-the-record colloquy which preceded the court's acceptance of his guilty plea did not disclose that the elements of the crimes charged were outlined in understandable terms. See Commonwealth v. Ingram, 455 Pa. 198 (1974). We must agree with appellant. The record is silent on this point except for the following question posed to appellant by his trial counsel:

"Have I explained the charges against you, the burglary and the larceny and the possible punishment for those charges and any possible defenses you might have?"

It is clear that this question does not meet the very specific requirements mandated by Commonwealth v. Ingram, supra, and therefore appellant's PCHA petition cannot be classified as patently frivolous.

However, simply because appellant has, what appears to be, a valid claim does not in itself entitle him to PCHA relief. Section 3 of the PCHA states:

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

[ 234 Pa. Super. Page ...


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