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COMMONWEALTH PENNSYLVANIA v. ANTHONY BOLDEN (02/01/83)

submitted: February 1, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY BOLDEN, APPELLANT



No. 3137 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County Nos. 1680-1684 December Term, 1976, 454-456 February Term, 1977.

COUNSEL

Robert C. Fogelnest, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, McEwen and Montgomery, JJ.

Author: Wieand

[ 316 Pa. Super. Page 364]

On February 25, 1977, Anthony Bolden entered negotiated pleas of guilty to robbery and possession of an instrument

[ 316 Pa. Super. Page 365]

    of crime. He was sentenced on May 26, 1977 to serve a term of imprisonment of not less than five nor more than twenty years. He did not thereafter file a petition to modify his sentence, did not file a petition to withdraw his pleas of guilty, and did not take a direct appeal.

On April 3, 1978, he filed a P.C.H.A. petition; counsel was appointed; and an amended petition was filed. In the amended petition, Bolden averred that because of mental infirmity he had failed to comprehend the effect of his guilty plea. His plea, he contended, had been induced by counsel who was both unprepared and ineffective. A hearing was held on this petition, after which the court dismissed Bolden's petition, finding that guilty plea counsel had been effective and that Bolden's plea had been entered knowingly, intelligently and voluntarily. No appeal was filed from this order within the time allowed.

After the time for appeal had expired, present counsel entered an appearance for Bolden and obtained from the P.C.H.A. hearing court an order allowing the filing of an appeal nunc pro tunc. An appeal was thereafter filed in which appellant abandoned arguments based on averments contained in his amended P.C.H.A. petition. Instead, he argues before this Court, apparently for the first time, that guilty plea counsel was ineffective for failing to discover and that P.C.H.A. counsel was ineffective for failing to raise by a second, amended P.C.H.A. petition that the trial court had altered a pre-trial suppression order. This alteration had occurred on the same day, either shortly before or shortly after, the entry of appellant's pleas of guilty.

A pre-trial motion to suppress oral and written statements made by appellant to the police had been heard by the trial court on February 24, 1977. At the conclusion of the hearing, the court announced that the motion to suppress was denied. The clerk recorded the court's order as follows: "Motion to suppress statements denied. Findings of fact and conclusions of law to be filed." On the following day, February 25, 1977, the court filed findings and conclusions, together with an order which denied the motion to suppress Bolden's oral statements but granted the suppression

[ 316 Pa. Super. Page 366]

    of his written statements. On that same day, February 25, 1977, Bolden ...


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