No. 449 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Beaver County, Criminal Division, at No. 316 of 1970.
H. David Rothman, Pittsburgh, for appellant.
John L. Brown, Jr., Assistant District Attorney, Beaver, for Commonwealth, appellee.
Price, Montemuro and DiSalle, JJ. Montemuro, J., files a dissenting opinion. Decision was rendered prior to DiSalle, J., leaving the bench of the Superior Court.
[ 294 Pa. Super. Page 216]
On December 10, 1970, a jury found appellant, James Papariella, guilty of adultery and bastardy. On March 31, 1971, he was sentenced to pay the costs of prosecution, the lying-in-expenses, and child support in the sum of $10.00 per week; said payments to be made through the adult probation
[ 294 Pa. Super. Page 217]
office.*fn1 In a modification agreement entered into by appellant on October 31, 1973, and adopted by the court below on December 19, 1973, appellant agreed to an increase of child support in the sum of $80.00 per month; said payments to be made through the Collections Department, Domestic Relations Division of Butler County.
In early March of 1980, appellant filed a Petition for Relief under the Post Conviction Hearing Act*fn2 (P.C.H.A.), alleging that he received ineffective assistance of counsel at his 1970 trial. The lower court denied the petition on the sole ground that appellant was not eligible for relief under the P.C.H.A. because the petition did not aver that appellant was under a sentence of imprisonment, on parole, or on probation. The court noted that it would serve no purpose to permit appellant to amend his petition because, according to the court, the record clearly established that appellant was not on probation or parole when the petition was filed.
The P.C.H.A. provides in pertinent part:
§ 1180-3 Eligibility for relief To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under Section 5 and must prove the following:
(b) That he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or ...