No. 2 May Term 1978, Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 286 1973
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, Second Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
On June 27, 1973, Norvell Lee Sherard was convicted by a jury in the Court of Common Pleas of Dauphin County of murder of the second degree. Post-verdict motions filed by trial counsel seeking arrest of judgment or a new trial were denied, and judgment of sentence of not less than ten years nor more than twenty years imprisonment was imposed. A direct appeal was taken to this Court, and we affirmed the judgment of sentence. Commonwealth v. Sherard, 456 Pa. 505, 321 A.2d 372 (1974).
Subsequently, Sherard filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. The District Court dismissed the petition because Sherard failed to exhaust state remedies.
On May 10, 1976, Sherard filed a petition for relief 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.1978-79) [Hereinafter: PCHA]. Counsel from the office of the public defender of Dauphin County was appointed to assist him. The PCHA petition was denied and Sherard appealed to this Court from that order. Since the PCHA claim of ineffective assistance of counsel involved another public defender, we remanded the matter for the appointment of other counsel. Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977). In accordance with our opinion, the PCHA court appointed new counsel to aid Sherard in advancing his claims.
A counseled PCHA petition was filed. The petition was denied without conducting an evidentiary hearing. This appeal is from that order.
Sherard alleges the lower court erred in dismissing his petition without an evidentiary hearing. The right to a hearing is not absolute. Commonwealth v. Cimaszewski, 234 Pa. Super. 299, 300, 339 A.2d 95, 96 (1975); Commonwealth v. Hayden, 224 Pa. Super. 354, 356, 307 A.2d 389, 390 (1973). Section 9 of the PCHA, 19 P.S. § 1180-9 (Supp.1978-79), provides:
"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 support either in the record or from other evidence submitted by the petitioner."
A PCHA petition may not be summarily dismissed as "patently frivolous" when the facts alleged in the petition, if proven, would entitle the petitioner to relief. Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977); Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282 (1975); Commonwealth v. Via, 455 Pa. 373, ...