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COMMONWEALTH v. CORNITCHER (05/25/72)

decided: May 25, 1972.

COMMONWEALTH
v.
CORNITCHER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, No. 1151, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1962, No. 186, in case of Commonwealth of Pennsylvania v. Herbert Cornitcher.

COUNSEL

Andrea Levin and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Deborah E. Glass and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Concurring and Dissenting Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Chief Justice Jones.

Author: Roberts

[ 447 Pa. Page 541]

Appellant Herbert Cornitcher was convicted, after trial by jury in 1963, of conspiracy, carrying a concealed deadly weapon, aggravated assault and battery, assault and battery with intent to ravish, indecent assault,

[ 447 Pa. Page 542]

    and rape. He was sentenced to four to eight years on the rape indictment, and sentence was suspended on the remaining indictments.

On April 3, 1970, appellant filed a pro se petition for post-conviction relief,*fn1 alleging that he had recently discovered that one of the jurors at his trial had been personally prejudiced against him. On May 29, 1970, after a hearing held solely to determine whether appellant had waived his right to assert his prejudicedjuror claim,*fn2 appellant's petition was dismissed. At the hearing, appellant's counsel attempted to make certain amendments to appellant's pro se petition, but the hearing court denied his request. The Superior Court affirmed the dismissal of appellant's petition in a per curiam order, with Judges Hoffman, Spaulding, and Cercone dissenting. Commonwealth v. Cornitcher, 217 Pa. Superior Ct. 869,

[ 447 Pa. Page 543272]

A.2d 189 (1970).*fn3 Subsequently this Court granted allocatur.

Appellant argues before this Court that the hearing court improperly dismissed his petition on the grounds of waiver, and improperly refused defense counsel's request to file amendments to appellant's pro se petition. We agree with appellant. Accordingly, we reverse the order of the Superior Court and vacate the order of the hearing court. The record is remanded to the hearing court with direction to allow counsel's amendments to appellant's pro se petition and with direction to hold a hearing on the merits of appellant's prejudicedjuror claim.

I. The Rejected Amendments

At the start of appellant's May 29, 1970, PCHA hearing, appellant's counsel requested permission to make certain amendments to appellant's pro se petition.*fn4 This request was denied by the court. Appellant alleges that he would amend his petition to include, inter alia, a claim under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968).*fn5

[ 447 Pa. Page 545]

Section 7 of the Post Conviction Hearing Act*fn6 states: "The court may grant leave to amend or withdraw the petition at any time. Amendment shall be freely allowed in order to achieve substantial justice. No petition may be dismissed for want of particularity unless the petitioner is first given an opportunity to clarify his petition." (Emphasis added.)

Appellant, in light of Section 7's mandate that amendments be "freely allowed," contends that it was

[ 447 Pa. Page 546]

    error for the hearing court to refuse to permit amendments proposed by counsel to his pro se petition. The Commonwealth apparently argues that Section 7 permits amendments to eliminate defects in particularity, but does not permit additional issues to be raised by amendment.

There is absolutely no support in the language of Section 7 for the Commonwealth's contention. In fact, Rule 1506 of the Pennsylvania Rules of Criminal Procedure, adopted to implement the Post Conviction Hearing Act, clearly indicates that additional issues may be raised by amendment. That rule states in relevant part: "When the court grants a post conviction hearing, it shall . . . [h]old a hearing which may extend only to the issues raised in the petition or amended petition. . . ." (Emphasis added.)

Moreover, to ban amendments if they raise additional issues would completely undermine the major purpose of the Post Conviction Hearing Act -- to discourage piecemeal litigation of post-conviction claims. A large majority of PCHA petitions are composed either by the prisoner or by a jail house lawyer. In many instances counsel is not appointed until after the court receives the petition. Frequently, after talking with the prisoner and reviewing the transcript of the trial, counsel realizes that there are additional meritorious issues to be raised. If amendments raising issues not included in prisoners' pro se petitions were prohibited, we would be unable to presume that petitioner knowingly and understandingly waived those issues. For as we stated in Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968): "[W]aiver may be presumed only where the petitioner had counsel at the time the waiver allegedly occurred." Id. at 455, 243 A.2d at 442. See Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968).

[ 447 Pa. Page 547]

Perhaps there may be some circumstances where a court may properly refuse amendments to PCHA petitions. But in the case at hand there was absolutely no apparent reason to do so. In fact, the hearing judge seemed to be operating under the mistaken impression that issues not raised in one petition could automatically be raised in a later petition. Consequently, we conclude ...


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