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COMMONWEALTH v. SCOTT (03/15/72)

decided: March 15, 1972.

COMMONWEALTH
v.
SCOTT, PETITIONER



Petition for leave to appeal from order of Superior Court No. 831, Oct. T., 1971, affirming order of Court of Common Pleas of Delaware County, Dec. T., 1963, No. 432, in case of Commonwealth v. Jesse Scott.

COUNSEL

R. Barclay Surrick, Public Defender, for appellant.

Anna I. Vadino, Assistant District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Per Curiam

[ 449 Pa. Page 67]

This case comes to us on petition for allowance of appeal. Petitioner contends that his post-conviction hearing petition, which alleged the invalidity of his

[ 449 Pa. Page 68]

    guilty plea, was erroneously dismissed after a hearing in the Court of Common Pleas of Delaware County.

A review of the record discloses that petitioner offered uncontradicted testimony at his post-conviction hearing which, if believed by the hearing court, would establish his right to relief. The hearing judge took the case under advisement but died before rendering a decision. The case was then assigned to another judge who entered the order denying relief to petitioner on the basis of his review of the post-conviction hearing transcript.

We are of the view that the procedure followed in this case did not afford the court below an opportunity effectively to pass on the credibility of petitioner's hearing testimony -- in effect, the only question presented for that court's determination. The petition for allowance of appeal is therefore granted, the order of the Superior Court is vacated, and the record is remanded to the Court of Common Pleas for a new hearing on the post-conviction petition.

Disposition

Petition for allowance of appeal granted, order of Superior Court vacated, ...


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