No. 1018 Pittsburgh, 1981, Appeal from the PCHA of the Court of Common Pleas of McKean County, September Term, 1975 at Criminal No. 66.
James K. Angell, Smethport, for Commonwealth, appellant.
Charles J. Duke, Smethport, for appellee.
Rowley, Montemuro and Van der Voort, JJ. Van der Voort, J., concurred in the result.
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The Commonwealth appeals from an order granting appellee's Post-Conviction Hearing Act (PCHA)*fn1 petition.
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Finding that appellee's rights under Pa.R.Crim.P. 1100 had not been adequately protected by appellee's trial counsel, the PCH judge dismissed the indictment with prejudice and discharged appellee. For the reasons stated herein, we vacate the order and remand for a rehearing.
On July 28, 1975, Richard Wells, appellee, was arrested and charged with criminal homicide in connection with the death of Dorothy Davidson. On March 2, 1976, appellee proceeded to trial before the Honorable William F. Potter, President Judge of McKean County, and a jury. The following day, a verdict of guilty of second-degree murder was returned. Judgment of Sentence of life imprisonment was entered on March 25, 1976. No direct appeal was perfected.*fn2
On June 26, 1979, however, appellee filed a pro se PCHA petition in which he alleged that both trial and post-verdict motions counsel*fn3 had rendered him constitutionally ineffective assistance which resulted in the denial of his Rule 1100 rights. Counsel was appointed and a hearing on appellee's PCHA petition was held before President Judge Potter on September 22, 1980. Although appellee's trial and post-verdict motions counsel both testified, appellee did not. On August 5, 1981, prior to a decision having been filed by Judge Potter, appellee submitted an application asking him to disqualify himself. By Order of Court dated August 21, 1981, Judge Potter granted the application and withdrew from the case. On September 1, 1981, another available
[ 322 Pa. Super. Page 384]
judge (hereinafter PCH judge) was assigned by the Chief Justice to hear and determine the pending petition.
On September 21, 1981, the PCH judge had a conference with counsel for the parties to discuss the case. Appellee was not present, no evidence was presented and no record was made of that conference. Moreover, the record of the prior September 22, 1980 hearing before Judge Potter had not been transcribed and, therefore, was not available to the PCH judge. Additionally, the record of a proceeding held before Judge Potter on November 26, 1975, which the Commonwealth contends ...