Opinion
September 11, 1974.
December 11, 1974.
Practice — Post Conviction Hearing Act proceedings — Failure to raise issues on counseled direct appeal — Failure to allege extraordinary circumstances — Waiver.
1. Issues are waived in a Post Conviction Hearing Act proceeding where defendant failed to raise them on a counseled direct appeal or failed to allege extraordinary circumstances which would justify his failure to raise the issues on direct appeal.
2. Where an issue is decided adversely to a defendant on direct appeal, he is precluded from subsequently relitigating the matter.
Submitted September 11, 1974.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 1089, Oct. T., 1974, from order of Court of Common Pleas of Lancaster County, No. 2162 of 1971, in case of Commonwealth of Pennsylvania v. Clinton Lee Myers. Order affirmed.
Petition for post-conviction relief.
Order entered dismissing petition, opinion by BROWN, J. Defendant appealed.
Philip M. Cullen, Assistant Public Defender, and Theodore S. Danforth, Public Defender, for appellant.
Ronald L. Buckwalter, First Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.
Appellant Clinton Lee Myers was arrested on December 10, 1971, charged with attempt with intent to kill, and, on April 4, 1972, found guilty by a judge and jury. Appeals from the judgment of sentence resulted in an affirmance by this Court, 225 Pa. Super. 736 (1973), and a denial of allocatur by our Supreme Court on February 6, 1974. Appellant subsequently filed a petition and an amended petition for relief under the Post Conviction Hearing Act, which petitions were dismissed without a hearing on May 9, 1974. This appeal is from the refusal of the lower court to grant appellant a hearing.
In this appeal, appellant contends:
(1) That he was denied due process of law because of an erroneous charge of the trial judge regarding reasonable doubt;
(2) That his due process rights were violated when, by a slip of the tongue, the trial judge erroneously referred to a shotgun as a revolver; and
(3) That his conviction had been based upon conjecture and surmise, specifically, that there was not sufficient evidence of intent to commit murder. The first two issues were waived by appellant's failure to raise them on his counseled direct appeal or to allege extraordinary circumstances which would justify his failure to raise them on direct appeal. 19 P. S. § 1180-4 (b) and Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973). Appellant did raise the third argument on his direct appeal, but the issue was decided adversely to him and he is therefore precluded from relitigating the matter now. 19 P. S. § 1180-4(a)(2) and Commonwealth v. Murray, supra. We find that lower court correctly dismissed appellant's petition.
Order affirmed.