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COMMONWEALTH v. ALLEN (11/21/67)

decided: November 21, 1967.

COMMONWEALTH
v.
ALLEN, APPELLANT



Appeal from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1957, No. 63, in case of Commonwealth of Pennsylvania v. Herbert B. Allen.

COUNSEL

Dominic P. Costa, for appellant.

Henry T. Crocker, Assistant District Attorney, with him Richard A. Devlin and Anthony J. Scirica, Assistant District Attorneys, and Richard S. Lowe, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Dissenting Opinion by Hoffman, J.

Author: Per Curiam

[ 211 Pa. Super. Page 260]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant appeared in the Court of Quarter Sessions of Montgomery County on October 19, 1959, to answer two bills of indictment, No. 63, November Term, 1957, and No. 5 April Term, 1959. Both indictments charged him with burglary, larceny, receiving stolen goods and conspiracy. Appellant, without counsel, pleaded guilty to all of the charges in Bill No. 63, except conspiracy. On Bill No. 5, appellant pleaded not guilty. He was given a jury trial, without counsel, and was found guilty. Later that same day, while still without counsel, appellant was sentenced on each Bill to a term of three to six years, such sentences to run concurrently.

On March 1, 1967, appellant filed a petition under the Post Conviction Hearing Act, alleging denial of his right to counsel and lack of due process. Upon consideration of the petition, and answer, but without a hearing, the lower court granted a new trial on Bill No. 5 April Term, 1959, and dismissed the petition as to Bill No. 63, November Term, 1957. In other words, appellant was granted a new trial on the Bill to which he pleaded not guilty and had a trial without assistance of counsel. However, the Court dismissed the petition on the Bill to which appellant pleaded guilty.

This is an appeal from the dismissal of appellant's petition and denial of a new trial on Bill No. 63, November Term, 1957. In my opinion, appellant should be given a ...


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