No. 953 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, Phila. County at Nos. 532-533 June Term 1961.
Margaret T. M. McKeown, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Brosky, J., concurs in the result.
[ 298 Pa. Super. Page 495]
This appeal is from an order denying, without a hearing, appellant's third P.C.H.A. petition. The lower court found that all of appellant's claims had either been previously litigated or waived. We agree with appellant that one of his claims -- that because of ineffective counsel he was denied his right of appeal from the order denying his first P.C.H.A. petition -- has not been previously litigated or waived. We therefore reverse and remand for further proceedings consistent with this opinion.
This case has an extensive history going back more than 20 years. We shall, however, recount only so much of it as is necessary to dispose of the issue now before us. See also Commonwealth v. Johnson, 222 Pa. Superior Ct. 233, 294 A.2d 778 (1972).
[ 298 Pa. Super. Page 496]
Appellant was originally arrested in 1961 and was eventually convicted of aggravated robbery and criminal conspiracy and placed on probation. In 1969 he was found in violation of probation for the second time. Probation was revoked and a prison sentence of 8 to 20 years was imposed. Appellant did not appeal from the order revoking probation, but in November 1969 he did file a counseled P.C.H.A. petition. This was appellant's first P.C.H.A. petition. On June 10, 1970, after a hearing, it was denied.
Appellant did not appeal the order denying his first P.C.H.A. petition. On August 26, 1970, counsel who had represented appellant on his first petition wrote appellant a letter. In the letter counsel explained that he had intended to appeal the order denying the first petition, and had prepared the appeal papers, but that he had been unable to appeal because his associate, believing that the appeal period was 45 days, had let the appeal period expire. The letter went on to say that a petition for permission to appeal nunc pro tunc had already been denied by this court, that an appeal had been taken to Supreme Court, and that if the Supreme Court also denied relief, counsel intended to file a petition for a writ of habeas corpus in federal court.
The record discloses that the Supreme Court did deny relief and that on May 16, 1971, a petition for a writ of habeas corpus was filed in the United States District Court. On January 11, 1974, that court denied the petition on the ground that appellant had not exhausted his state remedies in that he could still file another petition under the Pennsylvania Post Conviction Hearing Act alleging that his failure to appeal the order denying his first petition was the result of ineffective assistance of counsel. On July 28, 1977, appellant did file pro se a P.C.H.A. petition that made that allegation, among others. This was appellant's third P.C.H.A. petition.*fn1 As part of the petition appellant included a copy of the letter of August 26, 1970, in which counsel on the
[ 298 Pa. Super. Page 497]
first petition had explained why no appeal from the order denying that petition had been taken. By order of February 9, 1978, the lower court, without a hearing, denied ...