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filed: August 27, 1982.


No. 2963 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1355-1358 December Term, 1974.


Louis J. Presenza, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montemuro, Hoffman and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.

Author: Hoffman

[ 303 Pa. Super. Page 556]

Appellant contends the lower court erred in summarily dismissing his pro se PCHA petition. We agree and, accordingly, reverse and remand for appointment of counsel and further proceedings consistent with this opinion.

Appellant was convicted on May 30, 1975, and his judgment of sentence affirmed on direct appeal. Commonwealth v. Garrison, 249 Pa. Superior Ct. 546, 377 A.2d 170 (1977). Appellant filed a pro se PCHA petition on November 21, 1977; counsel was appointed; the petition amended; a hearing held on September 15, 1979; the petition denied on April 24, 1980; and no appeal taken. Appellant had filed a second

[ 303 Pa. Super. Page 557]

    the first petition. On January 21, 1980, the court denied the second petition as being premature. On April 24, 1980, the court filed an opinion and order denying relief on the first petition. No appeal was taken therefrom. On June 6, 1980, appellant filed a third PCHA petition, pro se. By an opinion and order dated December 11, 1980, the court denied, without a hearing, this third petition. Appellant has appealed from the denial of relief on the third petition.

Appellant argues that his second and third petitions alleged that court appointed PCHA counsel on the first petition, was ineffective. Therefore, he contends the court should have appointed yet new counsel and held another hearing on the second and third petitions.

As to the second petition, in my judgment, the court correctly denied relief. The first amended petition was still pending; it was premature to claim counsel was ineffective prior to any indication of his success or failure.*fn*

Reviewing the third petition, I likewise agree with the lower court and would affirm its decision. Contrary to appellant's claim on this appeal, I do not find that the third petition alleged that prior PCHA counsel was ineffective. While he did check off the block, in the standardized petition, questioning counsel's effectiveness, nowhere in the petition is there an indication that he was challenging PCHA counsel's stewardship. Instead he challenged a photographic identification, and claimed he was not advised of certain rights or the existence of certain evidence. He did not claim that such challenges had not been finally litigated or waived because of petitioning counsel's ineffectiveness.

The lower court had just recently decided, adversely to appellant, allegations of trial error and trial counsel's ineffectiveness. Therefore, I believe the trial court properly, pursuant to Rule 1504 Pennsylvania Rules of Criminal Procedure, denied appellant's third petition without the appointment

[ 303 Pa. Super. Page 559]

    of counsel or the holding of another evidentiary hearing thereon. Appellant's claim was not properly presented in his third petition and neither the trial court or this court should consider it. Commonwealth v. Carrier, 494 Pa. 305, 308-309 n. 3, 431 A.2d 271, 273 n. 3 (1981); Commonwealth v. Zillgitt, 489 Pa. 189, 192 n. 3, 413 A.2d 1078 n. 3 (1980); Commonwealth v. Stokes, 294 Pa. Superior Ct. 529, 440 A.2d 591 (1982); Commonwealth v. Stanton, 294 Pa. Superior Ct. 516, 440 A.2d 585 (1982).

I respectfully dissent.

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