Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1972, No. 1598, in case of Commonwealth of Pennsylvania v. Lundy Tyrone Haynes.
John J. McCreesh, III, for appellant.
John D. Cooper, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., dissents. Concurring and Dissenting Opinion by Van der Voort, J.
[ 234 Pa. Super. Page 558]
On April 5, 1974, appellant's petition for relief under the Post Conviction Hearing Act.*fn1 was denied by the court below without a hearing. Appellant contends that the court's action was an express violation of § 1180-7 of the Act.*fn2
The appellant, Lundy T. Haynes, an indigent, was arrested on August 31, 1972, and charged with aggravated
[ 234 Pa. Super. Page 559]
robbery based on an incident which occurred in Philadelphia on August 16, 1972. His motion to suppress an eyewitness identification was heard and denied on December 27, 1972. Thereafter, in January, 1973, appellant was tried and found guilty of aggravated robbery by a jury. The Philadelphia Defender Association filed post-trial motions on behalf of the appellant. The motions were denied on April 5, 1973. On May 3, 1973, the appellant filed an appeal in forma pauperis in this Court and also filed a petition for appointment of counsel. Although the petition was granted, appellant discontinued his appeal to this Court in March, 1974. On March 8, 1974, appellant filed a pro se PCHA petition with the assistance of another prisoner. The appellant's petition was dismissed without a hearing. It is from that order that this appeal is taken.
The Commonwealth argues that because all the issues raised in appellant's PCHA petition*fn3 had been finally litigated, no evidentiary hearing was required. The Commonwealth points to the fact that appellant's claims were litigated in a motion to suppress and on post-trial motions. The Commonwealth argues in its brief that "[u]nder these circumstances, all the issues raised by this petition must be considered finally litigated under the Act. Although appellant was informed of his appellate rights on the record, he did not pursue an appeal, and has never claimed that his appellate rights were denied. Summary disposition is permitted under 1503, Pa. R. Crim. P. when the issues raised on a petition have been previously determined adversely to petitioner in a proceeding where he was represented by counsel." To decide whether the summary dismissal was proper, we must determine
[ 234 Pa. Super. Page 560]
whether in fact all the issues have been either finally litigated or waived.
Section 1180-4 of the Act provides that "(a) For the purpose of this act, an issue is finally litigated if: (1) It has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understandingly failed to appeal the trial court's ruling. . . . (b) For the purposes of this act, an issue is waived if: (1) The petitioner knowingly and understandingly failed to raise it and could have raised it before the trial, at the trial, [or] on appeal. . . ." Therefore, the critical question is whether the appellant's choice of procedure -- that is, ...