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COMMONWEALTH PENNSYLVANIA v. ELMER C. MCCLUCAS (08/01/88)

submitted: August 1, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ELMER C. MCCLUCAS, SR., APPELLANT



Appeal from the PCHA February 22, 1988, in the Court of Common Pleas of Dauphin County, Criminal, No. 684, 684 (A-D), 1985.

COUNSEL

Patricia A. Wenger, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.

Olszewski, Montgomery and Hoffman, JJ.

Author: Olszewski

[ 378 Pa. Super. Page 205]

This is an appeal from an order dismissing appellant's Post Conviction Hearing Act (PCHA) petition without an evidentiary hearing. Appellant asserts that the trial court erred in dismissing the petition when it raised: (1) the subsequent availability of exculpatory evidence that would have affected the outcome of the trial, and (2) the ineffectiveness of trial counsel for failure to appeal. We affirm.

In February, 1985, as the result of numerous incidents that occurred between appellant and his daughter, L.M., appellant was charged with corruption of minors, endangering the welfare of children, incest, indecent assault, two counts of simple assault, and three counts each of rape and statutory rape. On June 28, 1985, after a waiver trial, the court found appellant guilty of corruption of minors, incest, two counts of simple assault and three counts each of rape and statutory rape. After denying post-trial motions, the trial court sentenced appellant to concurrent terms of five-to-ten years for the three rapes, one-to-two years for the incest charge, and six-to-twelve months for simple assault. This Court affirmed the judgment of sentence on October 14, 1986. Commonwealth v. McClucas, 357 Pa. Super. 449, 516 A.2d 68 (1986).

On December 7, 1987, appellant filed a pro se petition under PCHA. Appointed counsel filed a supplemental petition on January 6, 1988. The petition was denied without a hearing on February 22, 1988, and this appeal followed.

Appellant first contends that the PCHA court erred in denying appellant's petition when it alleged that evidence had become available after trial that would have affected the outcome of the trial. Preliminarily, we note that:

The standard for determining whether the petition warrants a hearing is statutorily prescribed.

(a) When required. -- If a petition alleges facts that, if proven, would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer.

[ 378 Pa. Super. Page 206]

(b) When not required. -- 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. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

42 Pa.C.S. ยง 9549(a), (b).

The controlling factor in determining whether a petition may be dismissed without a hearing is the status of the substantive assertions in the petition. A petition may be denied with no hearing whatsoever when the petition asserts allegations which ...


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