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COMMONWEALTH v. HILL (07/15/71)

decided: July 15, 1971.

COMMONWEALTH
v.
HILL, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1942, No. 82, in case of Commonwealth of Pennsylvania v. John Henry Hill.

COUNSEL

H. David Rothman, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.

Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Pomeroy

[ 444 Pa. Page 76]

In 1942, appellant, represented by counsel of his choice, pleaded guilty to murder generally. The trial

[ 444 Pa. Page 77]

    court determined that appellant's crime constituted murder in the first degree and imposed a sentence of life imprisonment. No appeal was taken.

In 1966 appellant sought relief under the Post Conviction Hearing Act (Act of January 25, 1966, P. L. (1965) 1580, § 1, 19 P.S. 1180-1, hereinafter referred to as "the Act"), alleging that his guilty plea was involuntary, that he was denied the effective assistance of counsel, and that he was not properly arraigned. The petition was dismissed following an evidentiary hearing at which appellant was represented by court appointed counsel, and this Court affirmed. Commonwealth v. Hill, 427 Pa. 614, 235 A.2d 347 (1967).

The present appeal is from the dismissal without a hearing of another petition for post conviction relief.*fn1 In the new petition appellant repeats the charges of an involuntary plea and ineffectiveness of counsel which were finally litigated in the earlier appeal; appellant is therefore not eligible for relief on those grounds. Section 3(d) and Section 4(a)(3) of the Act (19 P.S. §§ 1180-3 and 1180-4). He now asserts additionally, however, that he was not informed of his right to appeal from his conviction or of his right to the assistance of counsel on appeal. His petition states that he was abandoned by his trial counsel immediately after sentencing, and that his appeal rights were not known to him until the filing of the present petition. The hearing court held that these issues had been waived under Section 4(b) of the Act,*fn2 because they could

[ 444 Pa. Page 78]

    have been raised at the earlier counseled PCHA proceeding, and because appellant had not alleged the existence of any extraordinary circumstances to justify the failure to raise them. The record indicates that while counsel was appointed for petitioner for the purpose of this appeal, he was unrepresented at the time of consideration of his second petition by the lower court.

There can be no doubt that in an initial post-conviction proceeding a claim of denial of the right of appeal is enough to warrant an evidentiary hearing (unless, of course, under Section 9 of the Act the claim is "patently frivolous and is without a trace of support . . . in the record"). Douglas v. California, 372 U.S. 353 (1962); Commonwealth v. Sliva, 415 Pa. ...


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