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COMMONWEALTH PENNSYLVANIA v. RICHARD PORTER (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD PORTER, APPELLANT



No. 92 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal, at No. 790 January Term, 1972.

COUNSEL

Andrew G. Gay, Philadelphia, for appellant.

Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Com., appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 256 Pa. Super. Page 165]

This appeal is from the lower court's order dismissing appellant's Post Conviction Hearing Act*fn1 petition without a hearing. We affirm that order.

On August 31, 1972, appellant entered a guilty plea to passing counterfeit money in violation of the Penal Code.*fn2 Appellant was sentenced to pay a fine of two hundred and fifty dollars and to serve twelve months probation. This sentence was not appealed.

During the ensuing months, appellant violated several of the conditions of his probation. Appellant failed to appear for a revocation hearing scheduled for August 31, 1973, and an arrest warrant was issued. On January 30, 1976, appellant was apprehended in Philadelphia. After a probation revocation hearing on March 25, 1976, probation was revoked. Appellant was sentenced to serve eleven months to five years imprisonment and to pay the costs of prosecution and the unpaid portion of the previously levied fine.

A counseled Post Conviction Hearing Act petition was filed on August 4, 1976. In this petition, appellant alleged that his 1972 guilty plea was not voluntarily and knowingly entered because he "was not advised of the elements of the crime with which he was charged, the possible defenses thereto, his privilege against self-incrimination, the presumption of innocence, and of his right to be confronted with the witnesses and evidence against him." This petition was dismissed by the lower court on the grounds that (1) the matter had been finally litigated or waived under the Post Conviction Hearing Act and (2) a review of the recorded guilty plea colloquy which was incorporated into appellant's

[ 256 Pa. Super. Page 166]

P.C.H.A. petition demonstrated the voluntariness of the plea.

As a general rule, a P.C.H.A. court may dismiss a petition without a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from the other evidence submitted by the petitioner. Act of January 25, 1966, P.L. (1965) 1580, § 9 [19 P.S. § 1180 -- 9 (Supp.1977-78)]. Moreover, even where a petitioner alleges facts that, if proven, would entitle him to relief, the petition may still be dismissed if the issue could have been raised previously and the petitioner does not allege extraordinary circumstances justifying his failure to do so. Commonwealth v. Bennett, 472 Pa. 314, 372 A.2d 713 (1977); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968).

In the instant case, appellant has failed to allege sufficient extraordinary circumstances explaining his failure to raise the matter previously.*fn3 The primary question raised in this appeal is whether, under recent pronouncements by this court and the supreme court, appellant ...


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