Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Hoffman, J., dissents and would remand for a hearing on appellant's Post Conviction Hearing Act petition. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 424]
After a non-jury trial on June 16, 1976, appellant was convicted of receiving stolen property.*fn1 Appellant failed to file post-verdict motions and was sentenced to serve a term of one to five years imprisonment. This sentence was not appealed.
On August 30, 1976, appellant filed a pro se PCHA petition.*fn2 The Dauphin County Public Defender filed a supplemental petition alleging that appellant's conviction resulted from a violation of the constitutional right to confrontation at trial, the introduction of evidence which was the fruit of an illegal search and seizure, and the denial of the right to effective assistance of counsel. The Public Defender also petitioned the court, pursuant to Commonwealth v. Crowther, 241 Pa. Super. 446, 361 A.2d 861 (1976), for the appointment of counsel not associated with his office. This petition was granted, and independent counsel was appointed.
In its Memorandum Opinion and Order, dated October 18, 1976, the lower court found that appellant's claims were
[ 253 Pa. Super. Page 425]
without merit and dismissed the PCHA petition without a hearing.
A PCHA petition must include all facts in support of the alleged error on which the petition is based. PCHA § 5(a)(1), [19 P.S. § 1180 -- 5(a)(1)]. Section 9 of the Act provides in part as follows:
"If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner." 19 P.S. § 1180 -- 9.
Appellant now claims that trial counsel was ineffective for failing to move to suppress the physical evidence obtained during the search of the automobile and for failing to object to alleged hearsay statements at trial. If upon examination of the record we can determine that the claims are "patently frivolous" there is no need to remand for an evidentiary hearing.*fn3
In his PCHA petition, appellant asserts the following facts in support of his suppression claim. On November 14, 1975, at approximately 9:45 p. m., a watchman employed by Harrisburg Cold Storage, a warehousing concern, observed four men removing cartons from the building and placing them in a light colored Chrysler bearing registration number 02Y934. At 11:10 p. m., Officer Jacob Vucenic and his partner, with knowledge of the above information, observed the suspect vehicle parked near a cafe. The officers observed two men leave the cafe and join two other men in the car. When the occupants observed the police, they drove away. The ...