Criminal Law — Practice — Proceeding under Post Conviction Hearing Act — Issue finally litigated in court below.
Where an issue is raised in post-trial motions and decided against the defendant and he does not appeal although advised of his rights to appeal, the issue is finally litigated and the defendant is not eligible for relief under the Post Conviction Hearing Act.
OPINION PER CURIAM, March 31, 1975:
This is an appeal from the dismissal of appellant's petition under the Post Conviction Hearing Act (PCHA). The only issue raised concerns the validity of the search warrant under which evidence used against appellant was seized. This issue was raised in post-trial motions, and was decided against appellant. There was no direct appeal from the judgment of sentence, although appellant concedes that he was advised not only of his right to appeal, but that he should appeal. This informed failure to appeal an issue decided below renders the claim raised here "finally litigated," PCHA § 4(a)(1), 19 P. S. § 1180-4(a)(1), and appellant is not eligible for relief under the Act. PCHA § 3(d), 19 P. S. § 1180-3(d).
Act of Jan. 25, 1966, P.L. (1965) 1580, §§ 1 et seq., 19 P. S. § 1180-1 et seq. (Supp. 1974-75).
Order affirmed.