No. 93 Harrisburg, 1982, Appeal from the PCHA Order of January 13, 1982 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 53 O.T. Jan. Session 1962
Marilyn Zilli, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, and Cirillo and Hoffman, JJ. Cirillo, J., filed a dissenting opinion.
[ 329 Pa. Super. Page 296]
On March 17, 1962, appellant was adjudged guilty of second degree murder. A few days later he was also convicted of assault with intent to kill. Appellant was sentenced to an aggregate sentence of thirteen and one-half (13-1/2) years to twenty-seven (27) years in prison.*fn1 No appeal was taken. On June 24, 1981 appellant filed a petition pursuant to the Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq. (Since reenacted at 42 Pa.C.S.A. § 9541 et seq.) Counsel who was appointed to represent him, filed an amended petition. The Commonwealth responded with a motion to dismiss appellant's petition without a hearing. The PCHA court dismissed the petition
[ 329 Pa. Super. Page 297]
without a hearing relying upon the Commonwealth's motion to dismiss.*fn2
On appeal appellant contends the court erred in denying his petition, which was his first such petition, without a hearing. The Commonwealth contends that appellant has failed to overcome the presumption of waiver arising from his delay of almost twenty (20) years in challenging his conviction. Appellant counters that he was not apprised of his appeal rights and that trial counsel was ineffective in failing to take the steps necessary to preserve and prosecute an appeal.*fn3
Section 1180-9 (now found at 42 Pa.C.S.A. § 9549) of the act reads in part:
(a) When required. -- If a petition alleges facts that, if proven, would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer.
(b) When not required. -- The court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from the other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary ...