decided: March 20, 1968.
Appeal from order of Court of Quarter Sessions of Northumberland County, Dec. T., 1957, Nos. 17 and 18, in case of Commonwealth of Pennsylvania v. Fred William Nahodil.
Peter Krehel, for appellant.
Samuel C. Ranck, Assistant District Attorney, and Vincent B. Makowski, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J.
[ 212 Pa. Super. Page 78]
Fred W. Nahodil, appellant, appeals from the denial by the Quarter Sessions Court of Northumberland County of his request for a hearing under the Post Conviction Hearing Act.
In December, 1957 appellant was sentenced to serve concurrent terms in a state correctional institution after entry of guilty pleas on two indictments for burglary. On March 28, 1966 he filed a petition*fn1 under the Act seeking release from custody on the sentences, which the court below dismissed on May 3, 1967 without a hearing.
In support of his request for a hearing appellant alleges the following grounds: (1) failure to advise him of his right to remain silent or of his right to counsel before he signed confessions; (2) failure to provide him with counsel at the preliminary hearing; (3) failure to provide him with counsel sufficiently prior to his arraignment for adequate preparation of a defense; and (4) appointment of counsel who was also appointed to represent a co-defendant.
[ 212 Pa. Super. Page 79]
There is little need to reiterate either the words or spirit of Section 9 of the Act, which provides that a hearing may be denied only if the claims are patently frivolous and without a trace of support either in the record or from other evidence submitted by the petitioner. It is not difficult to infer from these words the legislative intent that petitioners under the Act be given every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing.
Appellant Nahodil contends that, in addition to the above enumerated allegations, he is entitled to an evidentiary hearing because counsel designated for his defense was appointed by the court after his guilty pleas were recorded. If this is actually the case, and it does appear to be corroborated by the record, he is entitled to an evidentiary hearing. The court below, citing Commonwealth ex rel. Manning v. Rundle, 422 Pa. 297, 299, 220 A.2d 814 (1966), and Commonwealth ex rel. Smart v. Myers, 424 Pa. 315, 316, 227 A.2d 831 (1967), stated, "[Petitioner's] guilty pleas . . . while represented by counsel are confessions of guilt . . . and also constitute waivers of all non-jurisdictional defects and defenses. . . ." This is an accurate statement of the law but does not apply to the instant case if, in fact, the guilty pleas were entered before the appointment of counsel. The very fact that the record can appear questionable on this point mandates an evidentiary hearing.*fn2
The record is remanded for proceedings not inconsistent with this opinion.