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COMMONWEALTH PENNSYLVANIA v. BENJAMIN VELASQUEZ (03/20/80)

decided: March 20, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
BENJAMIN VELASQUEZ, APPELLANT



Nos. 30, 38 January Term, 1979, An appeal from the order of January 22, 1979, of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, denying relief under the Post-Conviction Hearing Act.

COUNSEL

Joel S. Moldovsky, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Virginia Kerr, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Kauffman, J., did not participate in the consideration or decision of this case. Eagen, C. J., concurred in the result. Roberts, J., filed a dissenting opinion.

Author: Nix

[ 488 Pa. Page 246]

OPINION OF THE COURT

Appellant was convicted of murder of the first degree, robbery and burglary on January 13, 1975 after trial by jury. Post-verdict motions were denied and appellant was sentenced to life imprisonment under the murder bill and to consecutive terms of ten to twenty years for the robbery and burglary charges. The judgments of sentence were affirmed on direct appeal by this Court. Commonwealth v. Velasquez, 473 Pa. 16, 373 A.2d 455 (1977). Subsequently, appellant initiated a post-conviction proceeding from which this appeal is taken.

All of the substantive issues attempted to be raised by appellant in this collateral attack are barred by the Post-Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 3(d), 4(b) & (c); 19 P.S. § 1180-3(d), 1180-4(b) & (c) (Supp.1978-79). See Commonwealth v. Bennett, 472 Pa. 314, 372 A.2d 713 (1977). Additionally, appellant raises numerous claims of ineffective assistance of counsel at trial and on direct appeal. We have considered these claims and found them to be without merit.

Lastly, appellant seeks as alternative relief a remand to the lower court for the filing and disposition of post-verdict motions. The basis offered for this request is the alleged failure of the trial judge to properly advise appellant under Pa.R.C.P. 1123(c). The issues that appellant urges were foreclosed during the original direct appeal, as a result of this alleged failure to properly explain Rule 1123(c), are the same issues raised in this collateral attack under the

[ 488 Pa. Page 247]

    rubric of ineffective assistance. Since we have determined that these issues were not of arguable merit, Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979), appellant has not in any way been prejudiced by the fact that he was unable to pursue them on direct appeal. Thus, no purpose would be served by remanding the cause at this time.

Order affirmed.

ROBERTS, Justice, ...


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