decided: June 13, 1968.
Appeal from order of Court of Oyer and Terminer of Allegheny County, Feb. T., 1960, No. 432, Sept. T., 1960, No. 544, March T., 1961, Nos. 106, 107, and 195, and June T., 1961, No. 186, in case of Commonwealth of Pennsylvania v. Benjamin Raysor.
John J. Dean, Assistant Defender, Daniel T. Zamos, Assistant Defender, and George H. Ross, Defender, for appellant.
Charles B. Watkins and Carol Mary Los, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
Author: Per Curiam
[ 212 Pa. Super. Page 283]
Dissenting Opinion by Hoffman, J.:
Petitioner filed for post-conviction relief on May 10, 1967, under the Post Conviction Hearing Act. Counsel was appointed to represent petitioner and the petition was denied without a hearing.
Petitioner contends that he was denied his right to appeal because he was not apprised of that right. All defendants convicted in criminal trials have a right to be told of their right to appeal and the assistance of counsel to perfect that appeal if they are indigent. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).
The lower court dismissed the petition on the ground that petitioner had waived his right to raise the above issue in the present petition, since he had filed two prior habeas corpus petitions and one petition under the Post Conviction Hearing Act. The lower court also stated: "It is inconceivable that the petitioner could not have been aware until now that an appeal from his conviction had not been taken."
The Supreme Court stated in Commonwealth v. Kizer, 428 Pa. 99, 236 A.2d 515 (1967), that if a petitioner has filed previous habeas corpus petitions or petitions under the Act without aid of counsel, he has not waived his right to file a subsequent petition for relief. In the instant case, all the prior petitions filed by the petitioner were in propria persona. Accordingly, the fact that petitioner has filed prior petitions cannot be equated with an intelligent waiver under section
[ 212 Pa. Super. Page 2844]
of the Act, and the lower court erred, in my opinion, in dismissing the present petition on that ground.
I would, therefore, vacate the order of the lower court, and remand the case to that court with instructions to review the petition on its merits [counsel has been appointed for petitioner] in order to determine whether an evidentiary hearing and/or other relief is required.
© 1998 VersusLaw Inc.