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COMMONWEALTH PENNSYLVANIA v. JAMES MITCHELL (03/24/83)

submitted: March 24, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES MITCHELL, APPELLANT



No. 117 Harrisburg 1982, APPEAL FROM THE PCHA ORDER OF MARCH 5, 1982 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, CRIMINAL NO. 1943. (B-D).C.D. 1980

COUNSEL

James Lee Goldsmith, Harrisburg, for appellant.

Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Cercone, President Judge, and Cirillo and Hoffman, JJ.

Author: Cirillo

[ 319 Pa. Super. Page 172]

Presently before this Court is an appeal from an Order of the Court of Common Pleas of Dauphin County dated March 5, 1982, denying appellant the relief prayed for in his petition for relief under the Post Conviction Hearing Act (PCHA).*fn1

The instant case began when Joseph Williams stopped on the road to aid the appellant whose automobile had a flat tire. Williams agreed to give the appellant a ride to the nearest service station. After entering Williams' car, the appellant pulled out a pistol, pointed it at Williams, and proceeded to take Williams' money and his car.

[ 319 Pa. Super. Page 173]

The appellant was initially charged with the offenses of robbery,*fn2 kidnapping,*fn3 theft by unlawful taking,*fn4 and theft by receiving.*fn5 An agreement was reached with the District Attorney whereby in consideration of a plea of guilty, the kidnapping charge would be reduced to unlawful restraint*fn6 and the charge of theft by receiving would be dismissed. Pursuant to this agreement, on April 1, 1981, the appellant entered pleas of guilty and on June 3, 1981, was sentenced to ten to twenty years on the robbery charge, five to ten years on the theft charge, and three and one-half to seven years on the unlawful restraint charge. All sentences were to run concurrently.

On June 16, 1981, the appellant, through his counsel, filed a Petition for Modification of Sentence and a Petition to Withdraw Guilty Plea. On June 17, 1981, the court denied the Petition for Modification of Sentence. The court further directed that a hearing on the Motion to Withdraw Guilty Plea be held on July 15, 1981. On June 22, 1981, the Motion to Withdraw Guilty Plea was withdrawn and the court, on the same date, cancelled the hearing.

On or about October 7, 1981, the appellant filed a pro se PCHA petition. Counsel was appointed and on February 3, 1982, an amended petition was filed. After an evidentiary hearing, the appellant's PCHA petition was dismissed and the relief requested denied. This appeal followed.

Appellant contends that the PCHA court erred in refusing to set aside his guilty plea and award a new trial

[ 319 Pa. Super. Page 174]

    or to lessen the severity of his sentence. He argues first that his guilty plea was unlawfully induced because he relied on his trial counsel's alleged intimations that he would receive a sentence of no more than seven years, and that the Commonwealth in the plea bargain had agreed to seek the imposition of such sentence. After a thorough review of the record of the PCHA hearing, it is evident that this issue is solely one of credibility between the testimony of trial counsel and that of the appellant. The hearing court, as trier of fact, resolved the credibility issue in favor of the guilty plea counsel. We will not disturb findings of the PCHA court on appeal when they are supported by the record. Commonwealth v. Wallace, 495 Pa. 295, 298, 433 A.2d 856, 858 (1981); Commonwealth v. Abbruzzese, 293 Pa. Super. 246, 250, 438 A.2d 977, 979 (1981). The following ...


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