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COMMONWEALTH PENNSYLVANIA v. GERALD ASHLEY (05/13/80)

filed: May 13, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
GERALD ASHLEY, APPELLANT



No. 11 March Term, 1978 Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 187 Criminal Division, 1976.

COUNSEL

Bruce D. Foreman, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ.*fn* Hoffman, J., files a concurring statement.

Author: Cercone

[ 277 Pa. Super. Page 289]

This is an appeal from the order of the court below dismissing appellant's petition under the Post Conviction Hearing Act*fn1 without holding a hearing. For the reasons set forth herein, we affirm.

The record discloses that in November of 1975 the Pennsylvania State Police were conducting surveillance on a Harrisburg residence pursuant to reports that drugs from Philadelphia were coming to that house. While so engaged Trooper James Drenning learned that a vehicle parked in front of the house had been reported stolen out of Philadelphia. When a man (later identified as appellant) and a woman came out of the house and entered the car and began to drive away, Trooper Drenning and his partner stopped the vehicle and placed appellant under arrest. A search incident to that arrest revealed that appellant had a quantity of heroin in his pocket. Appellant was then charged with possession with intent to deliver a controlled substance. Following a non-jury trial, appellant was found guilty as charged. Subsequent to the denial of his post-verdict motions, appellant was sentenced on July 5, 1977, to imprisonment for a term of one to ten years. Appellant filed an appeal to this court but subsequently withdrew it.

On November 7, 1977, appellant filed a pro se petition for relief under the PCHA. Private counsel*fn2 was then appointed to represent appellant and two supplemental petitions were thereafter filed. The petitions were denied without conducting an evidentiary hearing and this appeal ensued.

Appellant first contends that his trial counsel was ineffective in failing to object to allegedly prejudicial statements which are alleged to have pertained to appellant's religious beliefs and his association with the Black Muslims. At the suppression hearing (the testimony from which was later

[ 277 Pa. Super. Page 290]

    incorporated into the trial), Trooper Drenning was asked the following on cross-examination:

"Q. Now, did you receive information regarding drugs coming to the house in reference to Gerald Ashley or in reference to the owner of the house?

A. The only information that I had, Counselor, was that drugs were coming from Philadelphia, Muslim drug traffic was coming from Philadelphia to that residence, I did ...


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