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COMMONWEALTH PENNSYLVANIA v. CHARLES COLEY (02/11/86)

filed: February 11, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
CHARLES COLEY, APPELLANT



Appeal From PCHA July 11, 1984, court of Common Pleas Criminal Division, Philadelphia County, No. 1731, 1732 & 1734 December, 1973.

COUNSEL

William P. James, Philadelphia, for appellant.

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

Cavanaugh, Cirillo and Hester, JJ.

Author: Cavanaugh

[ 350 Pa. Super. Page 551]

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County, dismissing appellant's petition for PCHA relief without a hearing. We affirm the lower court's order.

Appellant was convicted of first degree murder, attempted robbery and criminal conspiracy on August 29, 1974. Testimony elicited by the Commonwealth established that a

[ 350 Pa. Super. Page 552]

    hotel clerk, William Caldwell, was fatally shot on October 20, 1973, while at work. Although there were no eyewitnesses to the actual shooting, two witnesses testified that two black males entered a lobby, one of them, carrying a gun. He threatened and then kicked one of the witnesses. A gunshot was heard and the victim was seen lying on the floor, mortally wounded by a shot in the face. One witness saw that one of the perpetrators had a chrome gun. Additional testimony connected appellant to the crime by virtue of the chrome revolver which he disposed of, and which was determined to be the murder weapon. Appellant, having waived his Miranda rights, gave a signed confession which was introduced at trial. His pre-trial motion to suppress the statement was denied.

Following argument on post-verdict motions, the trial court granted a new trial ruling that appellant's inculpatory statement was elicited in violation of his constitutional rights. The Commonwealth appealed and the Pennsylvania Supreme Court reversed and remanded for imposition of sentence in 1976.*fn1 Appellant did not appeal from the judgment of sentence. However, on July 2, 1982, appellant filed a pro se petition for post conviction relief.

PCHA counsel was appointed to represent appellant on July 7, 1983. Counsel reviewed the case and decided not to file an amended PCHA petition, as he felt that no issues of arguable merit existed. He wrote a detailed letter to Judge Blake setting forth the reasons for his conclusion. Judge Blake, after reviewing the record, agreed with counsel's opinion that appellant's petition was totally lacking in merit, and dismissed the petition, thereby, denying PCHA relief without a hearing.

PCHA counsel filed the present appeal, then was dismissed as appellant's counsel by Judge Blake, pursuant to appellant's request. New counsel was appointed to represent appellant on appeal. Present counsel initially contends that appellant was deprived of effective ...


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