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COMMONWEALTH PENNSYLVANIA v. DAVID ALLEN (04/16/80)

submitted: April 16, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID ALLEN, APPELLANT



No. 431 April Term 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. 7503712A.

COUNSEL

John H. Corbett, Jr., Pittsburgh, for appellant.

Kathryn L. Simpson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting opinion.

Author: Spaeth

[ 280 Pa. Super. Page 601]

This is an appeal from an order denying appellant's petition to withdraw a plea of guilty.

On September 25, 1975, appellant, represented by an attorney from the Public Defender's Office, pleaded guilty to a nine count indictment charging him with possession with intent to deliver a controlled substance,*fn1 delivery of a controlled substance,*fn2 and possession of a controlled substance.*fn3 Appellant filed neither post-verdict motions nor a direct appeal.

On February 11, 1976, appellant filed a petition under the Post Conviction Hearing Act,*fn4 alleging:

(1) Ineffective Assistance of Counsel. (2) Defendants Guilty Plea Was Unlawfully Induced. (3) That The Sentence Was Illegal. (4) The Court Did Not Have Jurisdiction Over The Case. 1. Defendant States That His Guilty Plea Was Illegally, Involuntarily Induced By Certain Misrepresentations

[ 280 Pa. Super. Page 602]

Made By His Court Appointed Attorney And District Attorney.

2. Defense Counsel Further Denied This Defendant Correct Representation By Not Having A Compleat Copy Of The Indictment Or Transcript Of The Preliminary Hearing. By Handling This Defendants Case In Such A Manner That Defendants Rights Were Not Adequately Protected As A Accused.

3. Defendant Further States That His Guilty Plea Was Based On Threats That Other Charges Would Be Dropped If Defendant Plead Guilty. None Of Which Was The Personal And Voluntary Decision Of The Accused. I Was Induced By Promises Or Threats Which Deprives It Of The Character Of A Voluntary Act Is Void. And Deprives Accused Of Due Process And Equal Protection Of The Law.

4. The Defendant Also Contends That The Sentence Was Illegal, And Denied Due Process Of Law. Where Attorney For The Commonwealth Objected To Pre-Sentence Report And The Court Basing Its Holdings To Disclosure Of Prior Convictions Where Defendant Has No Drug Related History. The Court Relied On Unconstitutionally Obtained Convictions, Confessions And Other Misinformation Which Adversely Affects The Defendants Interest.

5. The Court Should Not Have Jurisdiction Over The Case. Where The Same Two Government Agencies Working Together, Where One Can't Oppose The Other The Defendant Contends It Was A Conflict Of Interest In The Counsel For The Defendant And The Parties Toward Whom The Allegations Are Directed.

6. The Defendant Further Contends, Under All The Circumstances Of The Case, The Prosecuting Attorney For The Commonwealth Must Be Such Unavoidable Effect Would Be To Prejudice The Court. Forming In Their Minds A Fixed Bias And Hostility Towards The Defendant's Behalf Such Circumstances Of Doubt, Extenuation Or Degree of Guilt Which May Be Present In This Case.

[ 280 Pa. Super. Page 603]

The lower court appointed another attorney from the Public Defender's Office to represent appellant during the PCHA proceedings. On August 9, 1976, appellant presented to the lower court a petition to amend his PCHA petition and to withdraw the guilty plea. This petition quoted directly from paragraph 3 of the original PCHA petition, omitting the other allegations, and requested permission to withdraw the guilty plea on the ground that appellant's plea was involuntary as based on promises to drop other charges. The lower court granted appellant's motion to amend, and conducted a hearing on the amended PCHA petition and petition to ...


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