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COMMONWEALTH PENNSYLVANIA v. VAUGHN B. GREENLEE (02/16/79)

decided: February 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
VAUGHN B. GREENLEE, APPELLANT



No. 1874 October Term, 1977, Appeal from the Order of Cirillo, J., dated May 24, 1977, dismissing defendant's Post-Conviction Hearing Act Petition in the Court of Common Pleas of Montgomery County, at No. 48 April Term, 1973, and No. 5498 October Term, 1975.

COUNSEL

Vincent A. Couchara, Norristown, for appellant.

Ross Weiss, First Assistant District Attorney, Elkins Park, for Commonwealth, appellee.

Cercone, Spaeth and Lipez, JJ.

Author: Lipez

[ 263 Pa. Super. Page 479]

On May 17, 1974, appellant was sentenced to three to twenty-three months in Montgomery County Prison after pleading guilty to charges of receiving stolen goods and conspiracy. He was released on parole on August 18, 1974. On December 6, 1975, appellant was arrested and charged with burglary. On January 16, 1976, a parole revocation hearing was held on the burglary charge and on various technical parole violations. Appellant was found in violation of his parole and was sentenced to serve the balance of his original sentence. He then pleaded guilty to the burglary and a related charge, and was sentenced on that conviction to two to four years' imprisonment. Appellant was sent to the State Correctional Institution at Graterford to serve his sentence.

Appellant filed a Post-Conviction Hearing Act (PCHA) petition alleging that the sentence was illegal because he had been ordered to serve the burglary sentence before completing his original sentence. The PCHA hearing court

[ 263 Pa. Super. Page 480]

    found that the order committing appellant to prison for the parole violations clearly indicated that the sentence therefor was to precede the burglary sentence.*fn1 The PCHA court therefore ordered, on May 24, 1977, that the records at Graterford be corrected to indicate that appellant was first to serve the balance of his original sentence and then begin the burglary sentence. The order dismissed the petition without any other relief. Appellant does not argue this issue on appeal, and in fact agrees that the court was correct:

[T]he order of the lower court of January 16, 1976, was clear that the sentences were to be consecutive and that sentence for the parole violation was to precede the sentence for the new criminal offense."

Appellant's brief at 5.

Appellant asserts, by new court appointed counsel, on this appeal that his PCHA hearing counsel was ineffective for failing to move to amend the PCHA petition (which appellant had personally completed and filed) in order to allege ineffectiveness on the part of appellant's parole revocation hearing counsel on the grounds that that attorney had failed to object to the introduction, in the course of the revocation hearing, of alleged hearsay evidence concerning the burglary charge.

The standard to be applied in any consideration of alleged ineffectiveness of counsel is found in the ...


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