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COMMONWEALTH v. LOVEDAY (12/20/71)

SUPREME COURT OF PENNSYLVANIA


decided: December 20, 1971.

COMMONWEALTH
v.
LOVEDAY, APPELLANT

Appeal from order of Court of Common Pleas of Dauphin County, Sept. T., 1953, No. 2, in case of Commonwealth of Pennsylvania v. Billy Joe Loveday.

COUNSEL

Thomas C. Zerbe, Jr., Assistant Public Defender, for appellant.

Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ.

Author: Per Curiam

[ 445 Pa. Page 427]

Although the court below correctly permitted the appellant to file post-trial motions as though timely filed, Com. v. Robinson, 442 Pa. 512, 515 n. 2, 276 A.2d 537, 539 n. 2 (1971), we are confused by the use of the term "previously litigated" and the extensive quotation from our opinion in Com. ex rel. Loveday v. Myers, 422 Pa. 483, 222 A.2d 725 (1966). If the court below employed the concepts of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq., (Supp. 1971), it was error

[ 445 Pa. Page 428]

    since this matter must be treated as a direct appeal. Indeed, issues previously presented to this Court by pro se habeas corpus petitions are not finally litigated. Com. v. Wilson, 444 Pa. 433, 283 A.2d 78 (1971). Accordingly, the order is vacated and the matter is remanded for a speedy disposition unencumbered by any apparent reference to PCHA concepts.

Disposition

Order vacated and matter remanded.

19711220

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