No. 279 Harrisburg 1981, APPEAL FROM THE PCHA ORDER OF SEPTEMBER 11, 1981 IN THE COURT OF COMMON PLEAS OF PERRY COUNTY, CRIMINAL NO. 161 AND 172 OF 1978
William R. Bunt, New Bloomfield, for appellant.
Charles J. Rehkamp, Jr., District Attorney, New Bloomfield, for Commonwealth, appellee.
Cercone, President Judge, and Cirillo and Hoffman, JJ.
[ 318 Pa. Super. Page 323]
Presently before this Court is an appeal from an Order of the Court of Common Pleas of Perry County denying appellant the relief prayed for in his petition filed under the Post Conviction Hearing Act (P.C.H.A.).*fn1
The appellant was initially charged with the offenses of theft by receiving stolen property,*fn2 conspiracy to commit burglary,*fn3 robbery,*fn4 unlawful carrying of firearms,*fn5 conspiracy to commit robbery,*fn6 and aggravated assault.*fn7 On September 20, 1978, pursuant to the terms of a negotiated plea, the appellant entered pleas of guilty to one count of theft by receiving stolen property, a third degree felony, and to one count of robbery, a first degree felony. The pleas were accepted by the Commonwealth in full satisfaction of all counts pending against the appellant. The Commonwealth recommended that concurrent sentences be imposed. After an extensive colloquy, the Court accepted the pleas but reserved specifically the power to sentence irrespective of this recommendation.
A pre-sentence investigation revealed 28 juvenile adjudications mostly for burglary and larceny. In addition, appellant, at the time of the offenses, was an escapee from Schuylkill County Prison and was also on parole from the State Correctional Institution at Camp Hill. On November 20, 1978, the Court of Common Pleas sentenced the appellant to eight to twenty years on the robbery charge and
[ 318 Pa. Super. Page 324]
three and one-half to seven years on the theft by receiving charge, sentences to run concurrently.
The appellant filed a pro se motion for reconsideration and counsel filed a post-verdict motion claiming the sentences were unduly severe in light of the nature of the offenses, the circumstances surrounding the offenses, and the appellant's character and attitude. These motions were denied and dismissed by the Court on December 1, 1978.
On January 3, 1979, the appellant was granted leave to appeal to the Superior Court in forma pauperis. On appeal, the appellant challenged the propriety of the sentences imposed. The Superior Court, 287 Pa. Super. 618, 428 A.2d 269, affirmed the judgment of sentence on July 18, 1980. Thereafter, on April 23, 1981, the appellant filed a petition under P.C.H.A. seeking a new trial and/or a correction of sentence. Following a P.C.H.A. hearing, the Court of Common Pleas denied the appellant's petition except for appellant's right to file nunc pro tunc a petition for allowance of appeal to the Supreme Court.*fn8 The present appeal followed.
Appellant contends that the P.C.H.A. court erred in refusing to set aside his guilty plea or to lessen the severity of his sentence. He argues that he is entitled to collateral relief on three grounds: (1) that his plea was the result of an illegal confession and his counsel was ineffective in failing to move for its suppression; (2) that counsel was ineffective for failing to personally investigate the crime; and (3) that trial counsel was ineffective for leading the appellant to believe that he would receive a substantially lighter sentence than he actually received. A review of the record in light of appellant's claims indicates that they are without merit. We therefore affirm the P.C.H.A. court's denial of his petition.
[ 318 Pa. Super. Page 325]
Appellant argues first that he should be permitted to withdraw his guilty plea because it was motivated by a constitutionally defective confession and his counsel was ineffective in failing to move for its suppression. Appellant claims that the confession and statements given to the two arresting officers were based on statements by the officers that he would "get off easier", he would receive a "light sentence", and that his brother Richard, who was in custody at the time for an unrelated offense, would receive favorable treatment if appellant pleaded guilty. After a thorough review of the record of the P.C.H.A. hearing, it is evident that this issue is solely one of credibility; the testimony of appellant and of the two arresting officers stand in direct contradiction. The P.C.H.A. court, as trier of fact, resolved the credibility issue against the appellant, and, in view of the amply sufficient record supporting that determination, it must be sustained. Commonwealth v. Riddick, 492 Pa. 430, 424 A.2d 1266 (1981); Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977).
As to appellant's contention that trial counsel was ineffective for failing to file a motion to suppress this confession, it has been well-established that counsel cannot be deemed ineffective for failing to advance frivolous issues; only when an abandoned claim is of arguable merit need we inquire into whether counsel had reasonable grounds for not pursuing it. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). The P.C.H.A. court found that even if counsel had filed a motion to suppress the evidence, it would have been highly unlikely the result would have been other than it was. At trial, evidence was presented in the form of a valid photographic identification of the appellant by an eyewitness, as well as strong circumstantial evidence in the form of possession of a large quantity of ...