No. 24 APRIL TERM, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Fayette County, at Nos. 441 and 441 1/2 of 1975.
Simon B. John, Assistant Public Defender, and Thomas P. Ruane, Jr., Public Defender, Uniontown, for appellant.
Conrad B. Capuzzi, District Attorney, Uniontown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Cercone and Price, JJ., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 498]
Complaint was filed against appellant Dillard W. Robinson, Jr. on May 15, 1975, charging him with robbery. Appellant was indicted on August 15, 1975 at Nos. 441 and 441 1/2 for robbery and theft by receiving stolen property. Since it became clear that, because of unavailability of court room space, appellant could not be brought to trial by November 11, 1975 (the 18th day after the complaint was filed), the Commonwealth on October 20, 1975 filed a petition for an extension of time. Hearing was held on this petition on October 27, 1975, at which time attorney Charles C. Gentile appeared in place of appellant's attorney, William Duffield, Esq., and objected to the continuance. On November 25, 1975, the lower court issued an order extending the time for trial to the December term of court. Appellant's case was called on December 3, 1975, and appellant's new counsel, Mr. Gentile, made an oral motion to dismiss for failure of the Commonwealth to try appellant within 180 days. Mr. Gentile moved alternatively for a continuance. The lower court granted the motion for a continuance without prejudice to appellant's right to a determination of the Rule 1100 issue. (The record discloses that appellant took no further action on the Rule 1100 issue until he filed his PCHA petition). On January 19, 1976, appellant appeared in court to enter a guilty plea pursuant to a plea bargain. The court accepted the plea and sentenced appellant in accordance with the bargain on May 28, 1976 on each indictment to make restitution in the amount of $606 and to serve concurrent terms of three to six years imprisonment.
[ 253 Pa. Super. Page 499]
Appellant filed no petition to withdraw his guilty plea,*fn1 and took no direct appeal,*fn2 but on June 14, 1976 filed a petition for relief under the Post Conviction Hearing Act.*fn3
[ 253 Pa. Super. Page 500]
In this petition, appellant raised the following issues: the introduction of evidence obtained pursuant to an unlawful arrest, the introduction of evidence obtained by an unconstitutional search and seizure, double jeopardy, and the abridgement of a right guaranteed by the constitution or laws of this state or by the constitution or laws of the United States. Appellant did not claim in his PCHA petition that his plea of guilty had been unlawfully induced or that he had been ineffectively represented by counsel. Relief requested by appellant was "release from custody and discharge" and "correction of sentence."
On June 21, 1976, new counsel, the Public Defender, was appointed to represent appellant. Hearing was held on the PCHA petition on July 13, 1976, and appellant's attorney questioned appellant about the allegedly-unlawful arrest and search:
"Q. In your post conviction petition you alleged the introduction of evidence obtained pursuant to an unlawful arrest. Would you tell the Court what you mean by that?
A. Unlawful arrest, what I'm saying is that information, I believe, that was received to give them enough substance to issue an arrest warrant was not grounds to have an arrest issued. Now, on the illegal search, and which it was, there was no one at my home and the home did not belong to me, and what would ...