Commonwealth v. Penn

457 Pa. 517 (1974)

Commonwealth v. Penn, Appellant.

Supreme Court of Pennsylvania.

Submitted May 20, 1974.

October 16, 1974.

Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

Richard D. Walker, Public Defender, for appellant.

Wallace B. Eldridge, III, Assistant District Attorney, Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

OPINION PER CURIAM, October 16, 1974:

This appeal arises from the order of the Court of Common Pleas of Dauphin County dismissing appellant's second petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580, § 1-14, as amended, 19 P.S. §§ 1180-1 to -14 (Supp. 1974).

In his first PCHA petition, appellant's sole contention was that the Constitution of Pennsylvania and the Constitution of the United States prevented his being found guilty of voluntary manslaughter when the indictment was solely for murder. That petition was denied by the court below on August 25, 1970, *518 and on appeal this Court affirmed in Commonwealth v. Penn, 444 Pa. 526, 282 A.2d 233 (1971).

The instant petition does not raise any issue which could not have been raised in the first counseled PCHA petition. Under Section 4 of the Post Conviction Hearing Act, the court below properly found that appellant had waived his right to raise issues not previously asserted.

Order affirmed.