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COMMONWEALTH PENNSYLVANIA v. DAVID LEE THOMAS (09/13/85)

filed: September 13, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID LEE THOMAS, APPELLANT



Appeal from the PCHA of September 12, 1983 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 366 C.D. 1980

COUNSEL

Judith A. Calkin, Harrisburg, for appellant.

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

Spaeth, President Judge, and Cirillo and Cercone, JJ. Cirillo, J., files a concurring and dissenting opinion.

Author: Cercone

[ 345 Pa. Super. Page 212]

This is an appeal from the order of the Court of Common Pleas of Dauphin County dismissing appellant's Post Conviction Hearing Act (PCHA) petition without an evidentiary hearing. We affirm in part and reverse in part.

On August 7, 1980, a jury found appellant guilty of robbery. Post-verdict motions were filed, denied, and appellant was sentenced to imprisonment for a term of seven and

[ 345 Pa. Super. Page 213]

    one-half to fifteen years. On direct appeal appellant's sole contention was that the evidence was insufficient to sustain the verdict. A panel of this Court found appellant's sufficiency argument meritless and affirmed the judgment of sentence per curiam. Commonwealth v. Thomas, 303 Pa. Super. 580, 450 A.2d 187 (1982). Appellant's petition for allowance of appeal was denied by the Supreme Court on November 30, 1982. In December of 1982, appellant filed a pro se PCHA petition. Counsel was then appointed and filed a supplemental petition in February of 1983. On September 12, 1983, the court below denied the petition without a hearing and this appeal followed.

Appellant contends that an evidentiary hearing should have been held on the allegations contained in his PCHA petition. Those allegations are: (1) he was illegally sentenced because he was denied his right of allocution and that trial counsel was ineffective in both failing to inform him of that right and in not appealing the denial thereof; (2) trial counsel was ineffective in not requesting that the jury be instructed on the various degrees of robbery; and (3) trial counsel was ineffective in failing to request a mistrial after a Commonwealth witness arguably implied that appellant had a prior criminal record.*fn1

In pertinent part, the PCHA provides: "the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner." 42 Pa.C.S.A. § 9549(b). "While the right to an evidentiary hearing is not absolute, unless the PCHA court is certain of the total lack of merit of an issue raised in a PCHA petition, a hearing should be held on the issue." Commonwealth v. Rhodes, 272 Pa. Super. 546, 555, 416 A.2d 1031, 1035-36 (1979). Judged by these standards, we are of the opinion that while one of appellant's claims is indeed patently

[ 345 Pa. Super. Page 214]

    frivolous, the remaining two contentions have possible merit and, ...


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