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COMMONWEALTH PENNSYLVANIA v. JOSEPH E. BOSTIC (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH E. BOSTIC, JR., APPELLANT



No. 2266 October Term, 1976, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Bucks County, at Nos. 385-1, 385-2 of 1973.

COUNSEL

Joseph E. Bostic, Jr., in pro. per.

Robert D. Baldi, Assistant Public Defender, Doylestown, for appellant.

Kenneth G. Biehn, District Attorney, Doylestown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Van Der Voort

[ 251 Pa. Super. Page 225]

The present appeal is that taken from the order of the lower court denying the appellant's petition for relief under the Post-Conviction Hearing Act.*fn1 Appellant had previously appealed his convictions of armed robbery, burglary, larceny, conspiracy and commission of a crime of violence with a firearm to this court which appeal resulted in a per curiam order affirming the judgment of sentence of the lower court, 231 Pa. Super. 727, 326 A.2d 531 (1974). In his P.C. H.A. petition filed pro se, appellant raised several issues, however, in this appeal he concedes that four of the five issues raised in his post-conviction petition had been raised in his previous appeal. Consequently those issues were disposed of by the per curiam order of this Court filed October 31, 1974 affirming the judgment of sentence. The primary issue appellant proffers in this appeal is that he is being punished twice for a single criminal act in violation of his state and federal constitutional right against double jeopardy. Additionally he argues that he has not waived his right to present that issue and it was error for the lower court to dismiss his post-conviction petition for relief without a hearing and without first appointing counsel to represent him.

In order to properly confront the issues raised by the appellant, it will be necessary to discuss them out of the order in which they were presented above.

[ 251 Pa. Super. Page 226]

The logical place to begin is with the issue concerning whether or not the lower court erred in not holding a hearing on his petition and not appointing counsel to represent him.

Appellant filed a petition for leave to proceed in forma pauperis and for appointment of counsel due to his indigency at the same time he filed his P.C.H.A. petition. By order dated July 6, 1976, the lower court denied appellant's P.C.H.A. petition without a hearing or appointing counsel on the basis that it was "patently frivolous, totally devoid of merit and without a trace of support in the record".

Initially we must examine the Post-Conviction Hearing Act in order to determine if there is any statutory authority for a lower court to dismiss a P.C.H.A. petition ...


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