decided: September 27, 1976.
COMMONWEALTH OF PENNSYLVANIA
JAMES L. DITMORE, APPELLANT
Appeal from the Order dated November 14, 1975 denying Post-Conviction, of the Court of Common Pleas, Criminal Div., of Fayette County, at No. 27 of 1972. No. 345 April Term, 1976.
Simon B. John, Asst. Public Defender, Uniontown, for appellant.
Conrad B. Capuzzi, Dist. Atty., Uniontown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.
[ 242 Pa. Super. Page 250]
This is an appeal from an order dismissing appellant's second Post Conviction Hearing Act*fn1 petition without a hearing. The case is a procedural labyrinth. On September 6, 1974, appellant, after a jury trial, was found guilty of assault and battery with intent to rob, armed robbery, and robbery with an accomplice. Post-trial motions were filed on September 13, 1974, and denied by order dated March 17, 1975. Appellant was sentenced on April 17, 1975. His sentence was made to run consecutive to a sentence he is serving in West Virginia.
On or about April 23, 1975, the "accomplice" came forth with an affidavit which the appellant proffers as "after-discovered evidence", to-wit, the "accomplice" testified in his affidavit that he alone committed the robbery and that the appellant did not participate in any way in the commission of the crimes for which the appellant was convicted.*fn2 At this time no direct appeal was
[ 242 Pa. Super. Page 251]
pending, and no prompt motion for a new trial was filed on the ground of after-discovered evidence. See Pa.R.Crim.P. 1123(d).
On April 29, 1975, appellant, with counsel other than trial counsel, filed his first PCHA petition raising, inter alia, the after-discovered evidence issue. This petition was not ruled on until July 15, 1975. In the interim, on May 16, 1975, appellant, represented by the same counsel who filed the PCHA petition and who presently represents the appellant, filed a direct appeal from the judgment of sentence. On July 10, 1975, this court granted appellant an extension of time, to August 30, 1975, in which to file his brief and record. By stipulation dated September 25, 1975 the parties agreed that the appeal be continued and placed on the argument list for the week of April 12, 1976. Appellant's judgment of sentence was affirmed per curiam without opinion on June 10, 1976. Commonwealth v. Ditmore, 241 Pa. Super. 533, 358 A.2d 63 (1976).*fn3
By order dated July 15, 1975, the lower court dismissed appellant's first PCHA petition without a hearing, on the ground that since the appellant was not "incarcerated in the Commonwealth of Pennsylvania [he was under sentence in West Virginia, see text supra] under a sentence of death or imprisonment nor is he on parole or probation," Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965), 1580, § 3(b), 19 P.S. § 1180-3(b) (Supp.1976-77), he was not entitled to PCHA relief. No appeal was taken from that order. See 19 P.S. § 1180-11 (Supp.1976-77).
[ 242 Pa. Super. Page 252]
On October 8, 1975, appellant, represented by the same counsel, filed his second PCHA petition. This petition was also dismissed without a hearing, by order dated November 14, 1975, for the same reason set forth in the order of July 15, 1975. See text supra. It is this order from which the appellant has appealed.
It is well-established that an appellate court may affirm the lower court on a rationale not advanced by the lower court. Gilbert v. Korvette's, Inc., 457 Pa. 602, 327 A.2d 94 (1974); Commonwealth ex rel. Wardrop v. Warden, 237 Pa. Super. 502, 352 A.2d 88 (1975). The issue of appellant's eligibility for PCHA relief was the same issue that could have been raised in an appeal from the order denying appellant's first PCHA petition. As heretofore noted, no timely direct appeal was perfected from the lower court's order of July 15, 1975. Hence, the issue is waived or previously litigated, see Commonwealth v. Caskie, 228 Pa. Super. 231, 323 A.2d 248 (1974) (per curiam), and on this ground alone we may affirm the order of November 14, 1975, dismissing the second PCHA petition without a hearing.
AVAILABILITY OF PCHA RELIEF
The appellant is incarcerated in West Virginia. To be eligible for relief under the Post Conviction Hearing Act, a petitioner must prove that he has been convicted of a crime and that he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or imprisonment, or on parole or probation. 19 P.S. § 1180-3. Appellant does not meet these criteria.
Appellant argues, however, that the holding of our Supreme Court in Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971) requires that his petition under the Post Conviction Hearing Act be treated as one for a writ
[ 242 Pa. Super. Page 253]
of coram nobis, and when so treated the lower court erred in denying his petition without a hearing. On the facts of this case, we do not believe that Commonwealth v. Sheehan, supra mandates that we make available, through the writ of coram nobis, a procedural channel in which the appellant may collaterally attack his conviction.
Initially, we note that the appellant's brief in the instant appeal argues only that the lower court erred in denying him a hearing during which he could present his "after-discovered" evidence. Accordingly, while his second PCHA petition does raise a number of other issues, we focus only on the "after-discovered" evidence issue since this is the only issue the appellant now urges requires the availability of the procedural channel of the writ of coram nobis.
Under the traditional definition of coram nobis, the writ is not available to permit the review of a prior judgment on the basis of an allegation of after-discovered evidence. In Commonwealth v. Harris, 351 Pa. 325, 328, 41 A.2d 688, 690 (1945) our Supreme Court noted the limited scope of the writ.
"2 Ruling Case Law, Sec. 260, p. 307, says: 'The purpose of the writ of coram nobis is to bring before the court rendering the judgment matters of fact which if known at the time the judgment was rendered*fn4 would have prevented its rendition. It lies to correct errors in fact only, and will not lie to correct errors in law,
[ 242 Pa. Super. Page 254]
prior to the conclusion of appellant's trial, was decided against the appellant on direct appeal. The "after-discovered" evidence issue is without merit and no procedural relief need be afforded on the facts of this case.