No. 765 April Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, Butler County, Pennsylvania, of May 2, 1977, refusing without hearing Appellant's Post Conviction Petition filed April 15, 1977 at Nos. C.A. 395 of 1976 and C.A. 537 of 1976 for said County.
Rex Downie, Jr., Beaver Falls, for appellant.
Robert F. Hawk, Butler, for Com., appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, J., dissents. Hester, J., files a dissenting statement. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 169]
Appellant Gary Lee Strader appeals to this Court from the order of the Court of Common Pleas of Butler County denying his Post Conviction Hearing Act petition without a hearing.*fn1 One half of the petition dealt with a judgment of sentence entered after appellant was convicted following a jury trial of terroristic threats, indecent assault, and unlawful restraint. We find no error in the lower court's dismissing this part of the petition without a hearing and, accordingly,
[ 262 Pa. Super. Page 170]
affirm that part of the order. The other half of appellant's P.C.H.A. petition related to his guilty plea to a charge of rape. Appellant was entitled to a hearing on this aspect of his petition. Therefore, we reverse this part of the lower court's order and remand the case for an evidentiary hearing limited to this issue.*fn2
If a [P.C.H.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.
The Act of Jan. 25, 1966, P.L. (1965) 1580, § 9, 19 P.S. § 1180-9 (1978-79 Supp.). When a lower court denies a P.C.H.A. petition without a hearing, we will affirm the court's order if upon an examination of the record we also can determine that the claims raised in the petition are patently frivolous. We will remand for an evidentiary hearing on the petition only when it is impossible to tell from the record whether appellant's petition was frivolous and without support. Commonwealth v. Payton, 253 Pa. Super. 422, 385 A.2d 410, 412, 414 (1978).
Appellant's first claim in his P.C.H.A. petition was that trial counsel was ineffective in failing to file a timely motion to suppress identification testimony prior to his trial
[ 262 Pa. Super. Page 171]
on the aforementioned charges.*fn3 In determining whether appellant was denied the effective assistance of counsel, we must make an independent review of the record, and first decide whether the claim with which the attorney is charged with not pursuing had some reasonable basis. Only if the claim which was foregone was of arguable merit must we inquire into counsel's reasons for not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977).
Reviewing the evidence in a light most favorable to the verdict winner,*fn4 here, the Commonwealth, the facts are as follows: On the evening of May 11, 1976, at approximately 9:30 P.M., Ms. Karen Holden was returning home from work. As she was proceeding north along Route 8 in Butler County, appellant drove up beside her in his car and motioned for her to stop. After they both pulled off the road, appellant, telling her that he had a gun, forced her out of her car and into his. He then requested that she have sexual intercourse with him and commit sodomy upon him. When she refused, he started his car and drove to a nearby cemetery. There, they both got out of his car and he attempted to force her to have sexual relations with him. She screamed and managed to escape, running to a nearby house. Appellant sped off in his car.
Upon arriving at the house, Ms. Holden explained to Mr. Robert Cover what had happened and asked him for help. While Mr. Cover was telephoning the police, a neighbor, Mr. Joseph Shaffer, arrived at the Cover home. Before the police arrived, Ms. Holden described her ...