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COMMONWEALTH PENNSYLVANIA v. NEILL KENNEDY OVERALL (02/22/80)

filed: February 22, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
NEILL KENNEDY OVERALL, JR., APPELLANT



No. 85 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Crawford County, Criminal Division, Nos. 433 and 473 of 1976.

COUNSEL

John D. Petruso, Meadville, for appellant.

Robert S. Bailey, Assistant District Attorney, Meadville, will not file a brief on behalf of Commonwealth, appellee.

Price, Judge. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 275 Pa. Super. Page 208]

Following a jury trial commenced on November 8, 1976, appellant was convicted of eight counts of burglary.*fn1 No post-trial motions were filed and he was sentenced to concurrent prison terms of three to six years. Appellant failed to perfect a direct appeal from the judgment of sentence, but on May 12, 1977, he filed a petition under the Post Conviction Hearing Act (PCHA)*fn2 alleging ineffective assistance of trial counsel in several respects. The Crawford County Court of Common Pleas, after appointment of new counsel, heard oral argument and dismissed the petition without an evidentiary hearing on the basis that the claims were either frivolous or refuted by the record. This appeal followed, and we now vacate that order of dismissal and remand for an evidentiary hearing.

As has often been reiterated, the right to a hearing on a PCHA petition is not absolute. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Cimaszewski, 234 Pa. Super. 299, 339 A.2d 95 (1975); Commonwealth v. Hayden, 224 Pa. Super. 354, 307 A.2d 389 (1973). Section nine of the PCHA 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."

Presently, appellant checked ten of the thirteen reasons for relief provided on the printed PCHA form. Only three of these need give us pause, those being allegations that the conviction resulted from

[ 275 Pa. Super. Page 209]

"The denial of any constitutional right to representation by competent counsel.

The introduction into evidence of a statement obtained in the absence of counsel at a time when representation ...


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