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COMMONWEALTH PENNSYLVANIA v. NORVELL LEE SHERARD (08/14/81)

filed: August 14, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
NORVELL LEE SHERARD, APPELLANT



No. 37 March Term, 1979, Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 1479 CD 1973.

COUNSEL

Bruce D. Foreman, Harrisburg, for appellant.

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

Cercone, P. J., Watkins and Montgomery, JJ. Cercone, President Judge, dissents.

Author: Montgomery

[ 290 Pa. Super. Page 60]

Appellant takes this appeal from the lower court's denial of his Post Conviction Hearing Act,*fn1 hereinafter PCHA, petition without a hearing. The order of the lower court is affirmed for the reasons set forth below.

On September 10, 1973, appellant was arraigned on a charge of prison breach,*fn2 at which time he entered a plea of not guilty and requested a jury trial. On the date set for trial, October 4, 1973, appellant withdrew his plea of not guilty and entered a plea of guilty to the charge. Following a thorough colloquy, he was sentenced to a term of imprisonment of one to two years to begin and be computed from the expiration of the ten to twenty year sentence he was and is serving, and to run consecutively thereto. No motion to withdraw the guilty plea was filed nor was a direct appeal taken. Appellant subsequently filed pro se and supplemental PCHA petitions during November, 1978, alleging unlawful inducement of his guilty plea and ineffective assistance of trial counsel.

In denying appellant's petitions without a hearing, the Honorable William W. Caldwell found that the allegations raised were unsupported by the record. A PCHA hearing may be denied if it is determined that the claims set forth in the petition are unsupportable by the record and

[ 290 Pa. Super. Page 61]

    frivolous. Commonwealth v. Cimaszewski, 234 Pa. Super. 299, 339 A.2d 95 (1975). A review of the record as it relates to appellant's PCHA claims results in a determination that the lower court's summary dismissal of appellant's petition was proper.

Appellant's first allegation is that the evidence produced in support of his guilty plea did not establish the offense of prison breach. He claims that, therefore, his guilty plea should not have been accepted. Perusal of the record compels us to disagree with appellant's argument. The evidence presented at the guilty plea hearing was as follows:

At approximately 8:00 p. m. on June 3, 1973, appellant and three other inmates of Dauphin County Prison were observed crouching on a catwalk above the kitchen area, a restricted area, by another inmate who reported it to an on duty guard. A search disclosed that there was one inmate in the kitchen area proper, and appellant and the remaining two inmates were found on the catwalk. The guards' search also revealed a homemade key in the lock of the door securing the cell block area in which all four inmates were supposed to be confined. During the hearing, appellant freely admitted that he was fully aware that he had left the area of confinement and was in a ...


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