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COMMONWEALTH v. GILMER (10/09/69)

decided: October 9, 1969.

COMMONWEALTH
v.
GILMER, APPELLANT



Appeal from order of Court of Oyer and Terminer of Lackawanna County, Oct. T., 1947, No. 18, in case of Commonwealth v. John J. Gilmer.

COUNSEL

Joseph Wassell, for appellant.

Harry P. O'Neill, Assistant District Attorney, and Joseph J. Cimino, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell dissents. Concurring Opinion by Mr. Justice Eagen. Mr. Justice Jones and Mr. Justice Cohen join in this opinion.

Author: Roberts

[ 435 Pa. Page 570]

This case involves the narrow question whether appellant is entitled to a hearing under the Post Conviction Hearing Act. On October 14, 1947, after a jury trial, appellant was convicted of murder in the first degree and was sentenced to life imprisonment. Post trial motions were filed and then withdrawn. Appellant now claims that although he knowingly and voluntarily agreed to the withdrawal of the post trial motions, he did not know that this would also waive his right to appeal. The court below, relying on the post trial record colloquy, which discloses that appellant stated that he voluntarily agreed to the withdrawal of the motions, dismissed appellant's petition without a hearing.

We agree with appellant that a hearing is necessary. Appellant has raised a factual issue the determination

[ 435 Pa. Page 571]

    of which is not concluded by the record. If appellant's claim is found to be true as a matter of fact, he would be entitled to relief under Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). There is nothing in the record to disclose that appellant's claim is patently frivolous, nor has a hearing on this issue ever been held. Thus appellant must now have a hearing. Act of January 25, 1966, P. L. (1965) 1580, § 9, 19 P.S. § 1180-9. See, e.g., Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968). We of course take no position as to whether appellant's claims are meritorious, but merely remand for the PCHA court to make initial factual determinations.

The order of the Court of Oyer and Terminer of Lackawanna County is reversed and the case is remanded for proceedings consistent with this opinion.

Disposition

Order reversed and case remanded.

Concurring Opinion by Mr. ...


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