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COMMONWEALTH PENNSYLVANIA v. ZACHARY O. SCALES (01/14/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 14, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ZACHARY O. SCALES, APPELLANT

No. 165 Harrisburg, 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Dauphin County at Nos. 1151, 1151(a), 1151(b) C.D. 1979.

COUNSEL

James Lee Goldsmith, Harrisburg, for appellant.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Wieand, Cirillo and Popovich, JJ.

Author: Per Curiam

[ 309 Pa. Super. Page 171]

On October 16, 1979, a jury found appellant, Zachary O. Scales, guilty of rape,*fn1 involuntary deviate sexual intercourse,*fn2

[ 309 Pa. Super. Page 172]

    and simple assault.*fn3 No post-trial motions were filed and no direct appeal was taken. Appellant was sentenced to a term of imprisonment.

On November 24, 1980, appellant filed a pro se petition under the Post Conviction Hearing Act (PCHA).*fn4 On April 2, 1981, court-appointed counsel filed a supplemental PCHA petition on behalf of appellant. The Commonwealth filed an answer on May 12, 1981, and, on the same day, the lower court denied appellant's petition without a hearing. This appeal followed. Appellant's sole contention is that a hearing should have been granted on the issues presented in his supplemental PCHA petition. We agree and, accordingly, reverse and remand for an evidentiary hearing.

In his petition, appellant alleges, inter alia, the ineffectiveness of trial counsel for failing to take a direct appeal. Appellant asserts that immediately after sentencing he wrote a letter to his attorney, William Naugle, requesting that Mr. Naugle appeal his case. The PCHA court, in denying appellant's petition, adopted the Commonwealth's answer as its opinion.*fn5 In its answer, the Commonwealth stated that it had no independent knowledge of this letter. The Commonwealth pointed out that appellant did not offer any specifics as to the date when the alleged letter was

[ 309 Pa. Super. Page 173]

    written or what the contents would be, and that a copy was not attached. Furthermore, the Commonwealth argued that since appellant had waived his post-trial motions, "It seems incredible that the petitioner could now state that he requested trial counsel to appeal after the petitioner voluntarily limited all his appellate rights."

In Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978), our Supreme Court held that "A PCHA petition may not be summarily dismissed as 'patently frivolous' when the facts alleged in the petition, if proven, would entitle the petitioner to relief. Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977); Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282 (1975); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968)." Id. 483 Pa. at 187, 394 A.2d at 974. Here, appellant's assertion that he requested his trial counsel to file an appeal immediately after his conviction and sentence is uncontradicted. Although the Commonwealth's position in regard to appellant's waiver of his right to file post-trial motions is supported in the record, we cannot make a determination from the record that appellant did not request his counsel to appeal from judgment of sentence. Appellant's petition alleged that the trial court abused its discretion in sentencing appellant and that trial counsel was ineffective for not taking action to challenge the sentence imposed. "[W]hen the issue involved is the effectiveness of counsel, a hearing must ordinarily be held to resolve the question." Commonwealth v. Johnson, 231 Pa. Super. 30, 33, 331 A.2d 750, 751 (1974). We remand this case for a hearing on the issue of whether appellant's right to appeal the propriety of his sentence was violated.

Remanded for proceedings consistent with this opinion. Jurisdiction is not retained by this court.


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