Appeal from order of Court of Common Pleas of Montgomery County, Nov. T., 1967, No. 270, in case of Commonwealth of Pennsylvania v. Roosevelt Benjamin.
Jonathan D. Herbst, Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, Executive Assistant District Attorney, 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. Opinion by Spaulding, J. Jacobs, J., concurs in the result.
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Appellant, Roosevelt Benjamin, was charged with burglary and larceny, tried before a jury, convicted and sentenced. While in prison he filed a petition pursuant
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to the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp. 1970). His petition alleged, inter alia, that he was denied the effective assistance of counsel. As an appeal was pending before this Court, the petition was held in abeyance pending the outcome of that appeal. We affirmed the judgment of sentence per curiam. Commonwealth v. Benjamin, 216 Pa. Superior Ct. 817, 266 A.2d 551 (1970).
On September 28, 1970, the Court of Common Pleas of Montgomery County dismissed the Post Conviction Hearing Act petition without a hearing stating that appellant's claims were patently frivolous or had been disposed of in prior proceedings. This appeal followed.
It is well established in Pennsylvania that if "a petition alleges facts that if proven would entitle the petitioner to relief the court shall grant a hearing." Post Conviction Hearing Act, supra, § 9; Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968). The above is especially true if the petition alleges either ineffective counsel, Commonwealth v. Rush, 212 Pa. Superior Ct. 437, 243 A.2d 159 (1968); Commonwealth v. Young, 218 Pa. Superior Ct. 272, 275 A.2d 866 (1971); or obstruction of the right to appeal, Commonwealth v. Davis, 433 Pa. 267, 249 A.2d 766 (1969).
Although the record is incomplete, it appears that the ineffective assistance of counsel claim has not been previously litigated.*fn1 Petitioner is entitled to a hearing on this claim and any other issue not already waived.
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The order of the court below is vacated and the record ...