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COMMONWEALTH PENNSYLVANIA v. CHARLES E. MOORE (05/18/83)

submitted: May 18, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES E. MOORE, APPELLANT



No. 2447 PHILADELPHIA, 1981, Appeal from the PCHA Order in the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1755-1759 June Term, 1976, Nos. 1746-1747 July Term, 1976.

COUNSEL

Margaret M. Boyce, Philadelphia, for appellant.

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

Hester, Brosky and Beck, JJ.

Author: Hester

[ 321 Pa. Super. Page 446]

Before us is an appeal from an Order of the Court of Common Pleas, Philadelphia County, dated August 20, 1981, denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA). 42 Pa.C.S.A. § 9541 et seq.

On October 7, 1976, appellant entered a guilty plea on two Bills of Indictment charging him with possession, manufacture or delivery of controlled substances, heroin and methamphetamines. Imposition of sentence was deferred with appellant's consent and sentencing was set for January 31, 1977. A condition of the plea agreement required appellant to cooperate with several named narcotics officers in the apprehension and prosecution of other drug suppliers. In exchange for such cooperation, appellant was to receive a recommended sentence of probation. Appellant was advised,

[ 321 Pa. Super. Page 447]

    in the event that his cooperation was placed in issue by the Commonwealth, that he could withdraw his plea if the trial judge determined that he had cooperated as promised. Appellant was further advised, however, that if it was determined that he failed to cooperate, imposition of maximum sentence could result. Shortly following the entry of the plea, an issue with respect to appellant's cooperation did arise. At a hearing on June 22, 1977, the court determined that appellant had failed to comply with the terms of the plea agreement. On August 25, 1977, the court imposed sentences of six to twelve years on each bill.

Appellant, while represented by trial counsel, did not file a petition to withdraw the guilty plea either prior or subsequent to sentencing. Appellant did, however, while represented by trial counsel, take a direct appeal to this Court. We affirmed judgment of sentence in our per curiam order. Commonwealth v. Moore, 266 Pa. Super. 631, 405 A.2d 550 (1979). We noted in our memorandum in support of our order that appellant's sole basis on direct appeal was the alleged unknowing and involuntary aspects of the plea. We found that appellant's failure to challenge the voluntariness of his guilty plea by means of a petition to withdraw the plea in the trial court prior to taking the direct appeal resulted in a waiver of the alleged defects.

In the case before us, appellant once again seeks our review of the alleged unknowing and involuntary aspects of his plea through an allegation of ineffectiveness of trial counsel.

In his amended PCHA Petition filed by counsel other than original trial counsel, appellant asserted a myriad of contentions which included a general allegation of ineffectiveness of trial counsel, a claim that the guilty plea was involuntary and unlawfully induced, a claim that the lower court failed to advise appellant of his right to withdraw his plea, a claim that after-discovered evidence entitled appellant to a new trial, and a claim that the sentencing judge failed to comply with Rule 1405 Pa.R.Cr.P. Relief requested

[ 321 Pa. Super. Page 448]

    by appellant was a granting of a new trial or a ...


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