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COMMONWEALTH v. NORMAN (12/29/71)

decided: December 29, 1971.

COMMONWEALTH
v.
NORMAN, APPELLANT



Appeal from order of Court of Common Pleas of Berks County, June T., 1962, No. 159, in case of Commonwealth of Pennsylvania v. Albert S. Norman.

COUNSEL

Fred I. Noch, Public Defender, for appellant.

Robert I. Van Hoove, District Attorney, for Commonwealth, appellee.

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

Author: Roberts

[ 447 Pa. Page 218]

Appellant Albert Norman here contests the dismissal of his petition filed pursuant to the Post Conviction Hearing Act*fn1 in which he alleged he had been denied his right of appeal. The hearing court refused

[ 447 Pa. Page 219]

    to hear any testimony on whether Norman knowingly waived his appeal rights, ruling as a matter of law that appellant had finally litigated this question and therefore no hearing was required. For the reasons that follow, we disagree and remand the record to the PCHA court for a hearing on whether appellant knew of his right to appeal and of his right to have counsel appointed to assist him, if he is indigent.

Appellant was tried before a jury and convicted of second-degree murder on June 15, 1962. No post-trial motions were filed, and on July 5 of the same year he was sentenced to a term of imprisonment of from ten to twenty years. Appellant was represented throughout the trial and sentencing proceedings by counsel retained by his family. No appeal was taken from the judgment of sentence.

Appellant filed a petition for a writ of habeas corpus on June 9, 1965, which was dismissed after a hearing. This Court unanimously affirmed that order on April 18, 1967. See Commonwealth ex rel. Norman v. Stitzel, 425 Pa. 184, 228 A.2d 373 (1967).

Appellant then filed a PCHA petition on June 5, 1967. A hearing was scheduled, but appellant asked for a continuance. The matter was continued indefinitely.*fn2

Appellant filed a second PCHA petition on November 1, 1968, claiming ineffective assistance of counsel in that he had never been apprised of his right of appeal from the judgment of sentence. Hearing was held on April 2, 1969, at which time the court dismissed his

[ 447 Pa. Page 220]

    petition, ruling that appellant had finally litigated this issue because our Court had the trial record before us at the time of appellant's habeas corpus appeal. This appeal ensued.

In our recent decision in Commonwealth v. Cannon, 442 Pa. 339, 275 A.2d 293 (1971), we held that absent clear and direct evidence that a petitioner had abused the writ by seeking to litigate his claims in a piecemeal fashion as a means of vexation, harassment, and delay, the failure to raise an issue in a habeas corpus petition filed prior to the effective date of the Post Conviction Hearing Act*fn3 did not foreclose judicial consideration of the merits of that issue in a subsequent proceeding for at common law the dismissal of a habeas corpus petition was not a bar to a second petition or writ.

Hence, the hearing court was in error in determining that appellant's prior habeas corpus appeal foreclosed any consideration of whether he had been denied his right of appeal from the judgment of sentence. The decision of our Court in that habeas corpus appeal specifically noted that we were not then considering whether appellant had been denied the effective assistance of counsel in the filing and prosecuting of an appeal. See Commonwealth ex rel. Norman v. Stitzel, ...


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