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COMMONWEALTH PENNSYLVANIA v. IRVING JEFFERSON (08/27/79)

submitted: August 27, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
IRVING JEFFERSON, APPELLANT



Nos. 279 & 280 SPECIAL TRANSFER DOCKET, Appeal from the Order of the Trial Court Summarily Dismissing Defendant's Post Conviction Relief Petition upholding Defendant's Conviction in the Court of Common Pleas of Philadelphia County, Criminal Division - November Term, 1968, No. 1500-01.

COUNSEL

Arnold L. New, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 274 Pa. Super. Page 143]

Appellant contends (1) that the lower court erred in dismissing his petition under the Post Conviction Hearing Act (PCHA)*fn1 without holding an evidentiary hearing; and (2) that post-conviction counsel was ineffective because he

[ 274 Pa. Super. Page 144]

    did not participate in the filing of the PCHA petition. We disagree and, accordingly, affirm the order of the lower court.

On February 28, 1970, following a jury trial, appellant was convicted of murder in the first degree, aggravated robbery, and carrying a concealed deadly weapon. The trial court denied appellant's post-trial motions and sentenced him to life imprisonment on the murder conviction and imprisonment for five to twenty years on the robbery conviction. Sentence was not imposed on the conviction for carrying a concealed deadly weapon. Appellant filed a direct appeal to our Supreme Court, which affirmed the judgments of sentence. Commonwealth v. Jefferson, 445 Pa. 1, 281 A.2d 852 (1971). Subsequently, appellant filed a habeas corpus petition in the United States District Court for the Eastern District of Pennsylvania, which was denied. On April 20, 1976, appellant filed a PCHA petition seeking relief on the following grounds: (1) the introduction of a coerced confession into evidence; (2) the introduction into evidence of a statement obtained in the absence of counsel at a time when representation was constitutionally required; (3) the infringement of appellant's privilege against self-incrimination; (4) the denial of appellant's right to representation by competent counsel; and (5) the abridgement of a right guaranteed by the constitution or laws of Pennsylvania or the United States, including a right that was not recognized at the time of trial. The PCHA petition stated that appellant was able to pay the costs of the PCHA proceedings and that he was represented by counsel, who was named in the petition. The lower court dismissed appellant's petition without a hearing. This appeal followed.

Appellant first contends that the lower court erred in dismissing his PCHA petition for lack of particularity. Section 7 of the PCHA, 19 P.S. ยง 1180-7 (Supp.1979-80), provides in part: "No petition may be dismissed for want of particularity unless the petitioner is first given an opportunity to clarify his petition." Appellant's contention is without merit because the lower court did not dismiss the petition

[ 274 Pa. Super. Page 145]

    for lack of particularity.*fn2 Therefore, section 7 of the PCHA does not apply.

Appellant also contends that because he filed his petition pro se, the lower court should have contacted the attorney mentioned in the petition to determine if he, in fact, represented appellant. If the attorney indicated that he represented appellant, then, according to appellant, the lower court should have allowed appellant's attorney to amend the petition. If counsel indicated that he did not represent appellant, then, appellant argues, the lower court should have appointed counsel and ordered an amended petition. Pa.R.Crim.P. 1503(a) provides that, with an exception not applicable here, "when an unrepresented [PCHA] petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him." See Commonwealth v. King, 253 Pa. Super. 224, 384 A.2d 1314 (1978). In the absence of a request by appellant to appoint counsel and a ...


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