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COMMONWEALTH v. ARMSTEAD (08/06/70)

SUPERIOR COURT OF PENNSYLVANIA


decided: August 6, 1970.

COMMONWEALTH
v.
ARMSTEAD, APPELLANT

Appeal from order of Court of Common Pleas of Montgomery County, April T., 1963, No. 137, in case of Commonwealth v. Carl L. Armstead, Jr.

COUNSEL

Thomas E. Duffy, Assistant Public Defender, for appellant.

Stewart J. Greenleaf and Paul W. Tressler, Assistant District Attorneys, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ.

Author: Per Curiam

[ 217 Pa. Super. Page 120]

Appellant pleaded guilty, was sentenced, and did not appeal. His PCHA petition alleged denial of his constitutional right to representation by competent counsel "when entering plea of guilty", and denial of his appeal right. In substance, the petition attacks the validity of the guilty plea. The PCHA court entered an order granting appellant the right to appeal nunc pro tunc.

"When it is found in the course of a PCHA proceeding that a petitioner has been deprived of his right

[ 217 Pa. Super. Page 121]

    of appeal from a conviction based upon a guilty plea, the PCHA court should usually proceed to hear and decide all of the petitioner's other claims since there generally [except in murder cases] can be no appropriate claim of error which is not cognizable in the PCHA proceedings": Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970); Commonwealth v. Williams, 216 Pa. Superior Ct. 355, 267 A.2d 880 (1970). In such cases, the PCHA court should permit an amended petition, setting forth all claims petitioner wishes to raise with respect to his conviction and sentence, and proceed to hear them if non-frivolous and not clearly refuted by the record.

Order reversed and record remanded for proceedings consistent with this opinion.

Disposition

Order reversed and record remanded.

19700806

© 1998 VersusLaw Inc.



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