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COMMONWEALTH PENNSYLVANIA v. JOHN BOWERS (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN BOWERS, APPELLANT



Appeal from the Order and Opinion of April 15, 1975 in the Common Pleas Court of Delaware County denying the Petition for Post Conviction Hearing Act Relief. Indictments 251, 252, 253, May Sessions, 1970. No. 1177 October Term, 1975.

COUNSEL

Robert F. Simone, Philadelphia, for appellant.

Ralph B. D'Iorio, Assistant District Attorney, Media, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone and Price, JJ., concur in the result.

Author: Spaeth

[ 245 Pa. Super. Page 217]

This is an appeal from an order denying appellant's petition for relief under the Post Conviction Hearing Act.*fn1

On October 22, 1970, appellant was convicted after a trial by jury of burglary, larceny, robbery, and conspiracy. Motions in arrest of judgment or for a new trial were filed by the attorney who had tried the case, A. Charles Peruto, Esquire, and were dismissed. Bernard L. Segal, Esquire, then became appellant's attorney. He filed a direct appeal to this court, which resulted in a per curiam affirmance, Commonwealth v. Bowers, 222 Pa. Super. 713, 294 A.2d 752 (1972); the Supreme Court then allowed a further appeal but later dismissed it as improvidently granted, Commonwealth v. Bowers, 455 Pa. 646, 317 A.2d 192 (1973). The only issue raised on these two appeals was whether the trial judge had erred in ruling that the Commonwealth could impeach appellant's credibility by evidence of a prior felony conviction.

Appellant's representation was next assumed by Robert F. Simone, Esquire. He filed a PCHA petition raising certain issues not raised either by Mr. Peruto or by Mr. Segal.*fn2 Paragraph 9 of the petition alleges, in pertinent part as follows:

The issues which the Petitioner has raised in this Petition have not been finally litigated or waived because the Petitioner never made a knowing and understanding

[ 245 Pa. Super. Page 218]

[emphasis in original] waiver of his right to raise these issues at prior proceeding [ sic ] . . . . Counsel for Petitioner on Appeal raised but one issue before the Superior and Supreme Courts . . . . As a review of Paragraph 5 supra will reveal, many other more substantial and compelling defects in the conduct that the trial existed. [ Sic ] Nevertheless, the Petitioner was unaware of the existence of these defects and trusted his attorneys on Appeal to raise significant issues to correct the conduct of the trial . . . . Petitioner only realized that there were other more significant basis [ sic ] for vacating his conviction when new counsel reviewed the trial transcript and so advised him.

The petition was dismissed by the lower court without a hearing. This appeal followed.

Section 4(b) of the Post Conviction Hearing Act, supra, 19 P.S. ยง 1180-4(b), provides in pertinent part ...


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