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COMMONWEALTH PENNSYLVANIA v. JACK B. TUNNELL (10/03/75)

SUPREME COURT OF PENNSYLVANIA


decided: October 3, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
JACK B. TUNNELL, APPELLANT

COUNSEL

Paul Leo McSorley, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Nix

[ 463 Pa. Page 463]

OPINION OF THE COURT

This is an appeal from the denial of relief following a hearing on appellant's 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.

In 1969, appellant entered a plea of guilty to voluntary manslaughter for the killing of one Dorothy Edwards. He was sentenced to 3 to 10 years imprisonment. No appeal was taken from the judgment of sentence.

Four years later, appellant filed the petition here in question alleging in part that he had been denied his right to a direct appeal under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and that his plea was invalid because the trial judge participated in the plea negotiations, citing Commonwealth v. Evans, 434 Pa. 52, 54-56, 252 A.2d 689, 690-691 (1969).

The post-conviction hearing judge found both these claims to be without merit. On appeal to this Court appellant does not challenge the propriety of the

[ 463 Pa. Page 464]

    judge's ruling on the Douglas claim.*fn1 He contends here only that the evidence produced at the post-conviction hearing requires a finding that his plea was invalid and that the sentencing judge should have permitted him to withdraw his plea. However, we do not reach the validity of this contention because appellant has failed to show that this claim was not waived, as required for relief under section 3(d) of the PCHA, supra, § 3(d), 19 P.S. § 1180-3(d). Commonwealth v. Hines, 461 Pa. 271, 336 A.2d 280 (1975).*fn2

Appellant's contention that his plea was invalid was cognizable on direct appeal, Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Hill, 457 Pa. 1, 7, 319 A.2d 886, 890 (1974), and a failure to so raise it, absent extraordinary circumstances to justify such failure,*fn3 constitutes a waiver under section 4(b) of the PCHA, supra, § 4(b), 19 P.S. § 1180-4(b). While appellant might have avoided waiver had he prevailed on his Douglas claim, Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (filed July 7, 1975); Commonwealth v. Via, 455 Pa. 373, 376, 316 A.2d 895, 897 (1974), his failure to pursue the hearing court's adverse ruling on this point precludes further consideration of the issue.

Order affirmed.


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