No. 2129 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 390, 391 August Term, 1965.
David L. Pollack, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Wieand and Johnson, JJ. Spaeth, J., files a concurring opinion. Johnson, J., files a dissenting opinion.
[ 299 Pa. Super. Page 69]
This is an appeal from an order dismissing Lloyd Parker's P.C.H.A. petition without hearing and without any consideration of the merits of the issues raised therein. The petition is the fourth P.C.H.A. petition filed by appellant following his 1966 convictions for robbery and carrying a concealed deadly weapon.*fn1 Appellant contends that trial counsel and all subsequent counsel were ineffective for failing to assert a claim that the victim's identification testimony was tainted by a suggestive pre-trial identification procedure. We are constrained to reverse and remand for an evidentiary
[ 299 Pa. Super. Page 70]
hearing and consideration of the issue which appellant has raised.
The trial court dismissed appellant's P.C.H.A. petition without considering the merits of appellant's averment because it was of the opinion that the suggestiveness of the pre-trial identification procedure had previously been litigated. Our review of the record does not support this conclusion. It is true that appellant previously contended that a one-on-one confrontation with the victim three days after commission of the robbery had been invalid because he had not then been represented by counsel. It is also true that when an issue has been heard and decided, re-litigation may not be achieved by advancing a different theory. Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972). However, in Commonwealth v. Barnes, 248 Pa. Superior Ct. 579, 375 A.2d 392 (1977), this Court held that the issues of suggestiveness of pre-trial lineup and failure to be represented by counsel at such lineup are separate issues, and that the prior litigation of one is not a bar to a claim that counsel was ineffective for failing to raise the other.
Moreover, by asserting the ineffectiveness of trial counsel and all subsequent counsel for failing to raise the issue of the suggestiveness of the pre-trial one-on-one confrontation, appellant has alleged "extraordinary circumstances" which justify the failure to raise the issue in prior P.C.H.A. petitions. Thus, the issue has not been waived. Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980).
Substantively, we are unable to resolve appellant's claim on the present state of the record. When appellant was displayed one-on-one to the victim three days after the robbery, she was unable to identify him. At the preliminary hearing, however, she unequivocally identified appellant as one of the robbers, and this testimony was repeated during appellant's trial. Under these circumstances, appellant's contention appears to have arguable merit. At least, a contrary finding cannot be made summarily.
[ 299 Pa. Super. Page 71]
For these reasons we reverse the order of the court below and remand for an evidentiary hearing at which the merits of the issues raised in appellant's ...