No. 963 April Term, 1978, Appeal from the Order of April 26, 1978, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, granting Post-Conviction Relief at No. 127 February, 1967.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
G. William Bills, Jr., Pittsburgh, for appellee.
Van der Voort, Spaeth and Watkins, JJ. Spaeth, J., files a concurring statement.
[ 279 Pa. Super. Page 59]
This is an appeal by the Commonwealth from the order of the Court of Common Pleas, Allegheny County, Criminal Division, granting post-conviction relief to the appellee, Manuel Madronal.
The appeal by the Commonwealth is from the order vacating the sentences and discharging the appellee under the Act of Jan. 25, 1966, P.L. (1965) 1580 Para. 1, 19 P.S. § 1180-1 et seq., known as the Post Conviction Hearing Act. The appellee was indicted on charges of armed robbery, prison breach, holding hostages in a penal institution and assault and battery with intent to kill. Prior to trial, six other counts were dismissed by the grand jury. Indicted on the same counts were co-defendants Herbert F. Langnes, Jr., Dominick Codispoti, Richard Mayberry, Charles Ganss and Donald Montgomery. Appellee chose to represent himself and counsel was appointed to assist him. On February 21, 1968, a pre-trial hearing was held in which all defendant's except the appellee had filed Motions to Quash based on Rule 1100. After hearing, Judge Weir of the court below dismissed the charges against Mayberry, Montgomery and Codispoti, but Langnes and Ganss withdrew their motions to quash and elected to go to trial with the appellee.
The jury found the appellee not guilty of armed robbery, but guilty of prison breach and holding hostages and assault and battery with intent to kill. Post-trial motions were denied. He was sentenced to a term of life imprisonment on the holding the hostages charge; five (5) to ten (10) years on the prison breach charge; and one (1) to two (2) years on the assault and battery charge to run consecutively with the prison breach charge.
The appellee filed an appeal to the Superior Court and having failed to proceed, a judgment of non pros was entered on November 18, 1970. On November 29, 1977, the appellee filed a Petition for Relief under the Post Conviction Hearing Act alleging violation of the First, Fifth, Sixth and Fourteenth Amendments and obstruction of State Officials of appellee's right to file for a speedy trial. The Commonwealth
[ 279 Pa. Super. Page 60]
filed a detailed answer. In lieu of an evidentiary hearing, the court below instituted an inquiry by correspondence on the issues of fact and law and granted the petition vacating appellee's sentences and discharging him from incarceration. This appeal by the Commonwealth followed.
The Commonwealth contends that the lower court's inquiry and informal review of the appellee's post-conviction petition contravenes the statutory direction of the Post Conviction Hearing Act in that an evidentiary hearing must be held unless petitioner's claim is patently frivolous. As the Act requires that a petition may not be dismissed without a hearing because of the resulting prejudice to the petitioner, the Commonwealth asserts that it is similarly prejudiced when a petition is granted without a hearing. We agree.
It is clear that the Commonwealth may appeal in a criminal case when the question in issue is one of law. Commonwealth v. Geho, 232 Pa. Super. 16, 332 A.2d 817 (1974). The ...