November 25, 1983
COMMONWEALTH OF PENNSYLVANIA
HARRY PERSCHKA, APPELLANT
No. 421 Pittsburgh 1981, APPEAL FROM THE PCHA ORDER OF MARCH 11, 1981 IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, CRIMINAL NO. 15, 22, 23 JUNE 60; 109 JUNE 65; 77 SEPTEMBER 65
Before Cavanaugh, Rowley and Cirillo, JJ.
In 1965, appellant Harry Perschka pled guilty in the Mercer County Court of Common Pleas to the following crimes: robbery (at indictment No. 15 June Sessions 1960), robbery (No. 22 June Sessions 1960), burglary (No. 23 June Sessions 1960), and attempted burglary (No. 109 June Sessions 1965). Perschka also was convicted by a Mercer County jury of larceny, prison breach, and burglary (No. 77 September Sessions 1965). At a consolidated sentencing proceeding, the court sentenced Perschka to a prison term for each of these crimes on December 16, 1965.
On August 29, 1980, Perschka filed a petition (his fourth) under the Post Conviction Hearing Act,*fn* challenging each of the judgments of sentence entered December 16, 1965. After holding a hearing on Perschka's amended petition, the Honorable Albert E. Acker denied relief in an opinion and order dated March 11, 1981.
Perschka appeals. As to indictments Nos. 15, 22, and 23, he claims that his waiver of the presentment of a grand jury was invalid. As to No. 109, he claims that his waiver of a jury trial was invalid. As to No. 77, he claims that his waiver of post-verdict motions was invalid. Each of these claims was rejected in an opinion and order by Mercer County President Judge Leo McKay, dated July 20, 1966, filed in response to Perschka's first PCHA petition. Therefore, these claims have been finally litigated and no longer constitute grounds for relief under the PCHA. 19 P.S. §§ 1180-3(d), 1180-4(a)(1), (c).
As to indictment No. 77, Perschka also claims that his trial counsel was ineffective for not moving to sever the charges of larceny, prison breach, and burglary from similar charges against a co-defendant. Perschka has neither alleged nor proven extraordinary circumstances justifying his failure to raise this issue in his first, second, and third proceedings under the PCHA. Therefore, the claim is waived. 19 P.S. § 1180-4(b), (c); see id. § 1180-3(d).