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COMMONWEALTH PENNSYLVANIA v. ROBERT BLAGMAN (01/31/86)

filed: January 31, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT BLAGMAN, APPELLANT



Appeal from the PCHA Order of May 8, 1985, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. CP-2282-2285 June Term, 1970.

COUNSEL

Regina B. Glerin, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com. appellee.

Brosky, Johnson and Hester, JJ.

Author: Hester

[ 350 Pa. Super. Page 368]

This is an appeal from the denial of appellant's Post Conviction Hearing Act (PCHA) petition without a hearing after the appointment of counsel. The court held that appellant waived his right to PCHA relief by waiting nine and one-half years before bringing this collateral attack on his judgment of sentence. Although the court erred in finding a waiver, we affirm the denial of relief due to the frivolity of appellant's PCHA petition.

Appellant was sixteen years old when arrested for first degree murder and other offenses. He was convicted by a jury and sentenced to life imprisonment. On direct appeal, his judgment of sentence was affirmed by the Pennsylvania Supreme Court on October 16, 1974. Commonwealth v. Blagman, 458 Pa. 431, 326 A.2d 296 (1974). Appellant

[ 350 Pa. Super. Page 369]

    initiated this PCHA proceeding on March 8, 1984. The PCHA court held a hearing on the Commonwealth's motion to dismiss on the basis of the unexplained delay of more than nine years.

Appellant's excuses for the delay included his youth at the time of trial, his IQ of eighty-seven, his family's inability to afford counsel for him, his second-grade reading level and his ignorance of the law and how to prepare a petition. On the other hand, appellant was twenty years old when first incarcerated at Camp Hill in 1973. When he arrived, the law clinic told him to wait until a decision was made on his direct appeal. In 1978, appellant obtained a high school equivalency diploma, yet did nothing for five more years until he was transferred to Pittsburgh in 1983. While at Camp Hill, appellant used both the legal clinic and the law library, but never filed a post-conviction petition until March, 1984.

After the hearing, the court concluded as a matter of law that appellant's "delay of approximately nine and one-half years bars consideration of [his] petition for relief." The court cited Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981), as authority for invoking the doctrine of laches.

This was error. "The concept of laches . . . has no place in the criminal law." Commonwealth v. Doria, 468 Pa. 534, 542, 364 A.2d 322, 326 (1976). This court recently held that "a reading of the plain language of the [Post Conviction Hearing Act] compels the conclusion that a defendant's first PCHA petition can be filed at any time following conviction." Commonwealth v. Taylor, 348 Pa. Super. 256, , 502 A.2d 195, 197, (1985). The Taylor court went on to say that

     an unexplained delay in filing a PCHA petition is a factor to be considered in assessing the merits of the issues raised in the petition . . . . We should take care, then, to distinguish between finding a petitioner's claims meritless based, in part, on delay in filing a PCHA petition, and dismissing a first PCHA ...


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