William C. Haynes, Lancaster, for appellant.
D. Richard Eckman, Dist. Atty., Louise G. Herr, Joseph C. Madenspacher, Asst. Dist. Attys., Lancaster, for appellee.
Jones, C. J. and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellant was found guilty of murder in the second degree by a judge sitting without a jury. A direct appeal
was taken to this Court alleging that appellant was not effectively represented by trial counsel. The order of the court below was affirmed at 440 Pa. 579, 270 A.2d 695 (1970). Subsequently, on March 10, 1972, an order from the United States District Court was filed dismissing a petition for habeas corpus.
Following the denial of appellant's petition to the United States District Court, an uncounselled Post Conviction Hearing Act petition was filed in the court below alleging that appellant was not effectively represented by counsel on his direct appeal to this Court. Appellant's petition was dismissed without a hearing.
Appellant now asserts in this Court that it was error for the court below to dismiss his post conviction petition without a hearing on the issues presented in that petition. The Post Conviction Hearing Act clearly states that the court may deny a hearing if petitioner's claim is patently frivolous and is without a trace of support either in the record or from the evidence submitted by the petitioner. Act of January 25, 1966, P.L. (1965) 1580, § 9, 19 P.S. § 1180-9 (Supp.1974-75). Further, "[t]he appointment of counsel shall not be required if the petitioner's claim is patently frivolous and without trace of support in the record as provided by section 9 of the act." Act of January 25, 1966, P.L. (1965) 1580, § 12, 19 P.S. § 1180-12 (Supp.1974-75). Thus, if the petition of appellant was patently frivolous, it was not erroneously dismissed.
Appellant asserted as fact in his petition, inter alia : "(6) That [appellate counsel] did no separate research on his own and in fact filed the exact appellate Brief that [trial counsel] had previously prepared,*fn* (7) Petitioner had a Supplimental [sic] Brief of which [appellate counsel] refused to file."
In his opinion dismissing the petition, the judge below erroneously assumed that appellant was attempting to relitigate an issue which had previously been litigated in this Court on direct appeal. However, our earlier consideration of the case dealt with the ineffective assistance of trial counsel. The ...