Vincent C. Murovich, Pittsburgh, for appellant.
Frederick F. Coffroth, Dist. Atty., Alexander Ogle, Deputy Dist. Atty., Somerset, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Eagen, C. J., and Pomeroy, J., agree that the trial court erred in dismissing the post-conviction petition of this appellant without a hearing, and would remand the case to that court for a determination whether appellate counsel had a reasonable basis for failing to pursue the claim that appellant's confession should have been suppressed as the product of an illegal arrest. See Commonwealth v. Hubbard,
This is an appeal from a dismissal without hearing of appellant's counseled petition filed under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1976-77) (hereinafter "PCHA") by the Court of Common
Pleas of Somerset County. The petition set forth as the basis for relief the assertion that appellant, Rickie Allen Yocham, had been denied effective assistance of appellate counsel due to that counsel's failure to pursue on direct appeal from his murder conviction the challenge to the validity of a confession that was introduced at trial against him. For the reasons set forth hereinafter, we agree with appellant that he was entitled to an evidentiary hearing by virtue of the averments of his petition and that the Court of Common Pleas of Somerset County erred in summarily dismissing the petition.
Appellant was arrested and charged for his participation in a robbery of a motel located in Jennerstown, Somerset County, on November 18, 1970. During the course of this robbery, Mrs. Vera Catherine Horner who operated the motel with her husband, was shot and killed. After trial, the jury returned verdicts of guilty of murder in the first degree, robbery and conspiracy. Following the denial of post trial motions, sentence was imposed*fn1 and a direct appeal was taken to this Court. On October 30, 1975, we affirmed his conviction with a short per curiam opinion setting forth the issues raised as follows:
"[Appellant contends] (1) that those portions of his confession containing references to his commission of other crimes should not have been admitted into evidence; (2) that the admission of the typewritten confession signed by appellant violated the best evidence rule; and (3) that the jury should have been given a requested charge concerning appellant's alleged withdrawal from the criminal activity. We have examined each of the three issues raised and find them to be
without merit." Commonwealth v. Yocham, 464 Pa. 223, 224-25, 346 A.2d 297 (1975).*fn2
In its order filed on March 8, 1976, the Court of Common Pleas of Somerset County dismissed the counseled petition for post conviction relief stating that the allegations therein were "patently frivolous" and "without a trace of support either in the record" relying apparently on Section 9 of the PCHA, 19 P.S. § 1180-9 (Supp.1976-77). Section 9 provides in pertinent part:
If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of ...