Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 7903-0812.
Steven A. Morley, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
Montemuro, Popovich and Cercone, JJ.
[ 370 Pa. Super. Page 141]
This is an appeal from an Order of the Court of Common Pleas, Philadelphia County, dismissing, without a hearing, appellant's petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. We affirm.
Petitioner, Andre Craddock, was charged with aggravated assault, simple assault, possession of instruments of
[ 370 Pa. Super. Page 142]
crime, carrying firearms on a public street, criminal conspiracy, robbery, and recklessly endangering another person. Trial commenced on June 30, 1980. During jury deliberations, petitioner left the court room and did not return. Petitioner was found guilty, in absentia, of all charges. The trial court issued a warrant for Craddock's arrest and deferred sentencing. On September 11, 1980, petitioner was sentenced in absentia. Counsel for petitioner was present, but no appeal was taken.
Meanwhile, in August 1980, petitioner was arrested in California. In June, 1981, the Commonwealth learned petitioner was imprisoned in the Federal Correctional Facility in Leavenworth, Kansas.
In August 1985, Craddock was released into Pennsylvania's custody, and petitioner filed a pro se PCHA petition. Counsel was appointed and filed an amended petition. The Commonwealth responded with a Motion to Dismiss, which the PCHA Court granted. This appeal followed.
Petitioner, Andre Craddock, argues that sentencing in absentia was in violation of both court rules and the Pennsylvania and Federal Constitutions, and that trial counsel was ineffective for not objecting to the sentencing procedure. Petitioner alleges the PCHA Court erred in dismissing his petition based upon waiver.
The Post Conviction Hearing Act provides that in order to be eligible for relief under the Act, a person must prove that objection to the error resulting in his conviction and sentence has not been waived. 42 Pa.C.S.A. § 9543(4). And, even if a petition alleges facts constituting grounds for relief under the Act, an evidentiary hearing may be denied if the court finds the issues raised were waived by the petitioner. Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975). The Act ...