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COMMONWEALTH PENNSYLVANIA v. JOHN F. NOLE (03/02/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: March 2, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN F. NOLE, APPELLANT

No. 710 Philadelphia, 1982, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 6909-1532.

COUNSEL

Mitchell S. Strutin, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Cavanaugh and Wieand, JJ.

Author: Per Curiam

[ 319 Pa. Super. Page 594]

John Nole was convicted of murder in the first degree, robbery, burglary and carrying a concealed deadly weapon. A sentence of life imprisonment was affirmed by

[ 319 Pa. Super. Page 595]

    the Supreme Court. Commonwealth v. Nole, 448 Pa. 62, 292 A.2d 331 (1972). A subsequent petition for relief under the Post Conviction Hearing Act was dismissed after a counseled hearing, and the dismissal order was affirmed on appeal. Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975). A second P.C.H.A. hearing was filed pro se and dismissed without hearing or the appointment of counsel. No appeal was taken. A third P.C.H.A. petition was then filed and again dismissed without the appointment of counsel. Thereafter a timely appeal was filed on Nole's behalf by counsel who has now requested that the matter be remanded so that an amended P.C.H.A. petition can be filed.

We are constrained to agree that a remand is necessary. Under the decided cases, a petition for post conviction relief may not be dismissed summarily without counsel unless a previous petition involving the same issue or issues has been finally determined adversely to the petitioner in a counseled proceeding or one in which he knowingly waived the right to counsel. Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981); Commonwealth v. O'Nealel, 315 Pa. Super. 1, 461 A.2d 318 (1983); Commonwealth v. Cochran, 261 Pa. Super. 236, 396 A.2d 375 (1978). See also: Pa.R.Crim.P. 1503, 1504. The issues which appellant wishes to raise appear not to have been litigated in prior, counseled proceedings.

Reversed and remanded to permit counsel to file an amended P.C.H.A. petition. Jurisdiction is not retained.

19830302

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