Appeal from order of Court of Quarter Sessions of Lebanon County, Sept. T., 1963, No. 5, in case of Commonwealth of Pennsylvania v. Richard E. Miller.
Richard E. Miller, appellant, in propria persona.
R. Hart Beaver, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissent.
[ 211 Pa. Super. Page 486]
Dissenting Opinion by Hoffman, J.:
Petitioner pleaded guilty to the crime of prison breach and was sentenced on November 22, 1963 to a term of not less than two nor more than five years. On August 7, 1964, petitioner filed a petition for writ of habeas corpus. No hearing was held and no appeal was taken from the denial of that petition. Petitioner received no aid of counsel with this petition.
Petitioner filed a second petition under the Post Conviction Hearing Act on April 26, 1967. Counsel was appointed to represent petitioner. The lower court concluded, without a hearing, that since petitioner had filed a previous petition, he had waived his right to bring this petition under § 4 of the Act, and, therefore, denied the petition.
[ 211 Pa. Super. Page 487]
In my opinion, the lower court erred in dismissing the present petition. The Supreme Court in Commonwealth v. Kizer, 428 Pa. 99, 236 A.2d 515 (1967), held that since the petitioner had not been represented by counsel on his prior petitions, he had not waived his right ...