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COMMONWEALTH PENNSYLVANIA v. MUHAMMAD K. EL-AMIN (03/23/83)

submitted: March 23, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
MUHAMMAD K. EL-AMIN, A/K/A QUINTIN A. WIGFALL, APPELLANT



No. 22 Harrisburg, 1982, Appeal from the PCHA Order of December 8, 1981 in the Court of Common Pleas of Dauphin County, Criminal Division, No 381, (A), 408 C.D. 1978

COUNSEL

James Lee Goldsmith, Harrisburg, for appellant.

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

Cercone, President Judge, and Cirillo and Hoffman, JJ.

Author: Cercone

[ 321 Pa. Super. Page 47]

Appellant, Muhammad K. El-Amin a/k/a Quintin A. Wigfall, takes this appeal from the dismissal without a hearing of appellant's second Post Conviction Hearing Act (PCHA) petition. Appellant now argues that the court erred in dismissing his petition without a hearing. We agree and, accordingly, we remand for a hearing.

On May 18, 1978, appellant pleaded guilty to charges of aggravated assault, recklessly endangering another person

[ 321 Pa. Super. Page 48]

    and theft by receiving stolen goods. Pursuant to a plea agreement, appellant received a sentence of one and one-half to five years on the aggravated assault charge and two concurrent terms of one to two years on the remaining charges. No appeal was taken from these sentences.

Subsequently, on November 20, 1978, appellant filed a pro se PCHA petition, and the court appointed counsel to represent appellant in this matter. Whereupon, counsel filed an amended PCHA petition, but the court dismissed the petition without a hearing. An appeal was taken but was discontinued by appellant on March 14, 1980.

On March 20, 1981, appellant filed a second pro se PCHA petition. Court again appointed counsel to assist appellant, and counsel filed the herewith petition alleging then, as now, that appellant's first PCHA counsel was ineffective because counsel coerced appellant into dropping his appeal by telling appellant that he would receive a harsher penalty if his guilty plea were withdrawn and appellant were convicted at trial. The Commonwealth attempts to refute this argument, contending that it was appellant who initiated the discontinuance of his appeal by sending a letter to his attorney to that effect. The Commonwealth further claims that prior counsel contacted appellant to confirm the letter and as a result petitioned the Superior Court to discontinue the appeal. To substantiate its argument, the Commonwealth refers this Court to "Exhibit 1." The record, however, does not contain a copy of "Exhibit 1."

In relevant part, the Post Conviction Hearing Act then provided:*fn1

To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 ...


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