The opinion of the court was delivered by: Mitchell, M.J.
Wilmort Fraisar, an inmate at the State Correctional Institution at Somerset has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
On October 27, 1992, the petitioner entered a plea of guilty to charges of rape, statutory rape, involuntary deviate sexual intercourse, and corruption of minors at Nos.CC 199107726 and CC 199111106 in the Court of Common Pleas of Allegheny County, Pennsylvania. Pursuant to a plea agreement, Fraisar was sentenced to a four to twenty year period of incarceration.*fn1
The petitioner then unsuccessfully sought leave to withdraw his guilty plea following which an appeal was taken to the Superior Court in which the issue raise was:
Whether the trial court abused its discretion in denying Mr. Frazier's motion to withdraw guilty pleas, where the evidence of manifest injustice was clear in that the appellant's pleas were the involuntary product of trial counsel's unexpected abandonment of defense resolve and strategy five to ten minutes prior to jury selection, counsel unfairly demanded that a plea decision be made immediately, counsel was unprepared for the trial, counsel failed to fully explain and advise as to the import and consequences of the guilty pleas, and counsel failed to ensure that the guilty pleas were knowingly and intelligently entered.*fn2 On May 6, 1994, the judgment of sentence was affirmed.*fn3 A petition for allowance of appeal was filed in which this same issue was presented.*fn4 On October 18, 1994, leave to appeal was denied.*fn5
On September 12, 1995, Fraisar filed a second petition to withdraw his guilty plea. The latter was treated as a post-conviction petition and dismissed on August 4, 1997. As appeal was taken to the Superior Court in which the issues presented were:
I. Defense counsel was ineffective for failing to adequately investigate the case prior to Mr. Fraisar's plea; a proper investigation would have revealed evidence from the Department of Welfare that exonerated Mr. Fraisar.
II. The issue raised is cognizable under the post-conviction relief act because it is neither previously litigated nor waived.
A. The failure to trial counsel to discover and use clearly exculpatory evidence from the Department of Welfare that exonerated Mr. Fraisar was not decided by this Court on direct appeal.
B. Appellate counsel was ineffective for failing to argue a meritorious issue on appeal; this ineffectiveness overcomes the post-conviction relief act's waiver bar.
III. Because the claim presented in the amended petition presents genuine issues of material fact, the post-conviction court erred by dismissing the petition without a hearing.*fn6
On June 12, 1998, the Superior Court affirmed the denial of post-conviction relief in the form of leave to withdraw his guilty plea.*fn7 Leave to appeal to the Supreme Court was sought through a petition alleging:
I. [The] Superior Court erred by finding that counsel was effective even though he did not investigate a children and youth services report that found the charges of abuse were "unfounded."
II. [The] Superior Court erred by finding that this issue was previously litigated when [the] Superior Court did not decide this issue on direct appeal.*fn8 On ...