No. 41 Harrisburg, 1981, Appeal from the Order of the Court of Common Pleas of Dauphin County, Pennsylvania, at Nos. 965 and 968 Criminal Division 1975.
Larry E. Stone, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Wickersham, Rowley and Watkins, JJ. Wickersham, J., did not participate in the consideration or decision of this case.
[ 305 Pa. Super. Page 83]
On September 22, 1975, appellant was convicted, after a jury trial, of murder in the second degree and two counts of robbery. He was sentenced to life imprisonment for the murder conviction and ten to twenty years imprisonment for each robbery conviction; the three sentences to be served consecutively. The judgment of sentence was affirmed in Commonwealth v. Box, 481 Pa. 62, 391 A.2d 1316 (1978). During both his trial and appeal, appellant was represented by Charles O. Barto, Jr., Esquire.
On December 6, 1979, appellant filed a petition for relief under the Post-Conviction Hearing Act (PCHA).*fn1 On January 28, 1981, appellant's petition was denied without a hearing. This appeal followed.
[ 305 Pa. Super. Page 84]
Two issues are raised on appeal: 1) Was trial counsel ineffective in failing to file a pre-trial motion to suppress evidence and in failing to seek a charge to the jury on voluntary manslaughter?; and 2) Was appellant denied a fair trial by the introduction of evidence of unrelated offenses?
The right to an evidentiary hearing on a PCHA petition is not absolute. Commonwealth v. Cimaszewski, 234 Pa. Super. 299, 339 A.2d 95 (1975). A hearing may be denied if petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence. 19 P.S. § 1180-9. A PCHA petition may not be summarily dismissed, however, as "patently frivolous" when the facts alleged in the petition, if proven, would entitle petitioner to relief. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). We have concluded that by this standard appellant's claims are not "patently frivolous." Therefore, we will remand for an evidentiary hearing on appellant's petition.
Appellant initially alleges that he was denied effective assistance of counsel. In reviewing allegations of ineffective assistance, the court must first determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
In his supplemental petition, appellant first alleges that counsel was ineffective in failing to file a motion to suppress evidence obtained as a result of an alleged illegal search of appellant's dwelling. The Commonwealth argues that this issue is without merit because appellant did not have standing to challenge the search. The Commonwealth bases its argument on a statement made by appellant during his trial ...