No. 1115 Pittsburgh 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at Nos. 8226 December 1971 and 105 January 1972.
John A. Halley, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Wickersham, Rowley and Popovich, JJ.
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This is an appeal from the summary dismissal of a petition for post-conviction relief filed by appellant under the Post Conviction Hearing Act*fn1 (hereinafter referred to as PCHA). We affirm.
On July 12, 1972, appellant was found guilty by a jury of one count of murder of the second degree and one count of armed robbery.*fn2 Post-trial motions were denied and appellant
[ 324 Pa. Super. Page 299]
was sentenced to consecutive terms of imprisonment of 10 to 20 years for murder and 2 and 1/2 to 5 years for robbery. Following a direct appeal, judgment of sentence was affirmed by the Pennsylvania Supreme Court on October 16, 1974. See Commonwealth v. Staples, 457 Pa. 468, 326 A.2d 317 (1974).
Appellant filed the first of three PCHA petitions on February 18, 1975. Counsel was appointed and hearings were held on November 20, 1975 and December 11, 1975. In a lengthy opinion and order dated April 6, 1977, the court
[ 324 Pa. Super. Page 300]
below denied appellant's petition. The Supreme Court affirmed the denial of post-conviction relief in an opinion reported at 477 Pa. 552, 384 A.2d 1228 (1978). Appellant filed his second PCHA petition on March 2, 1981, which was dismissed by the lower court without a hearing or the appointment of counsel for the reason that the allegations raised had been previously litigated at the December 11, 1975, PCHA hearing. The instant pro se petition was filed on May 25, 1981, and was summarily dismissed for the same reason.*fn3
On this appeal, appellant argues that the summary dismissal of his third PCHA petition was improper because it raised the issue of double jeopardy, which was never finally litigated. Appellant also alleges that prior PCHA counsel was ineffective for failing to preserve this issue for appellate review. Appellant maintains that although the jury could properly exercise its mercy in a felony-murder case by finding him guilty of murder of the second degree, instead of felony murder, which constituted murder of the first degree under the Crimes Code as it existed in 1972, it was improper for the jury to sever the constituent elements of felony-murder and for the court to sentence him for both murder and robbery. Appellant cites Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958), for the proposition that all felony-murders in Pennsylvania other than that for which a defendant is found guilty of first degree murder is murder of the second degree. Appellant also relies on Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969), where the Court held that in a felony murder situation, the jury can exercise its mercy and convict of murder of the second degree rather than murder of the first degree even though the ...