No. 61 May Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal, of Dauphin County, at No. 1722 CD 1972
Tollie Watlington, pro se.
Marion E. MacIntyre, First Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., files a concurring opinion in which Eagen, C. J., joins. Flaherty, J., files a dissenting opinion in which Kauffman, J., joins.
This appeal is from an order of the Court of Common Pleas, Dauphin County, dismissing, without a hearing, a pro se Post Conviction Hearing Act petition of appellant, Tollie Watlington.
On October 10, 1972, appellant, represented by privately-retained counsel, was convicted by a jury of murder of the first degree. Appellant was immediately sentenced to life imprisonment, though the Court informed appellant of his right to file post-verdict motions within seven days. No such motions were filed.
Appellant, then represented by an Assistant Public Defender of Dauphin County, filed a direct appeal with this Court, alleging that the trial court had erred in failing to give cautionary instructions regarding the trial testimony of his co-defendant, Thomas Epps. Finding that no objection had been made at trial and that no post-verdict motions had been filed, we affirmed. Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973).
In January, 1979, appellant filed a pro se P.C.H.A. petition. A second attorney from the Dauphin County Public Defender's office was appointed; in an amended petition,
appellant alleged that trial counsel was ineffective for failing to: 1) file post-verdict motions, 2) object to certain trial improprieties (though no specific errors were mentioned), and 3) call certain witnesses who could have rebutted certain aspects of the Commonwealth's case. On March 26, 1979, the court dismissed appellant's petition without a hearing, finding that the issues had been waived because of appellant's failure to allege direct appeal counsel's ineffectiveness. No appeal was taken from the Court's ruling.
In September, 1979, appellant filed a second pro se P.C.H.A. petition, alleging that trial counsel was ineffective for failing to: 1) object to the trial court's charge on reasonable doubt, 2) object to the trial court's charge that a Commonwealth witness may well have been an accomplice, and 3) object to the trial court's charge in that the Court continuously highlighted the Commonwealth's contention that the homicide occurred during an attempted robbery. Appellant also alleged that direct appeal counsel was ineffective for failing to allege trial counsel's ineffectiveness and finally, that P.C.H.A. counsel was ineffective for failing to allege ineffectiveness on the part of direct appeal counsel. The Court dismissed appellant's petition without a hearing, finding that appellant's claims either were not cognizable under the act or had been finally litigated. This pro se appeal followed.
Appellant argues that the P.C.H.A. Court erred in dismissing his second P.C.H.A. petition without a hearing and without appointing counsel. We agree.
The Post Conviction Hearing Act provides:
"(a) For the purpose of this act, an issue is finally litigated if:
"(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understandingly ...