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COMMONWEALTH PENNSYLVANIA v. JOHN F. NOLE (12/28/84)

decided: December 28, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOHN F. NOLE, APPELLEE



No. 18 E.D. Appeal Docket, 1984, Discretionary appeal from the October 7, 1983 Order of the Superior Court, No. 710, at Philadelphia, 1982 reversing and remanding the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of September Session 1969, Nos. 1532-1535, Pa. Super. , McDermott, J., did not participate in the consideration or decision of this case. Zappala, J., filed an Opinion in Support of Affirmance in which Nix, C.j., and Larsen, J., joined. Flaherty, J., filed an Opinion in Support of Reversal in which Hutchinson and Papadakos, JJ., joined.

Author: Per Curiam

[ 506 Pa. Page 433]

ORDER OF COURT

The Court being equally divided, the Order of the Superior Court is affirmed.

[ 506 Pa. Page 438]

OPINION IN SUPPORT OF AFFIRMANCE

ZAPPALA, Justice.

I would affirm on the basis of the Superior Court opinion.

Opinion IN SUPPORT OF REVERSAL

FLAHERTY, Justice.

The trial court determined after reviewing the instant pro se petition that the issues presented in this, Nole's third petition under the Post Conviction Hearing Act, Act of May 13, 1982, P.L. 417, No. 122, § 2, 42 Pa.C.S.A. § 9541,

[ 506 Pa. Page 434]

(hereinafter PCHA), had been either finally litigated or waived and thus were not cognizable under the Act and accordingly dismissed the petition. The Superior Court's order reverses the trial court's dismissal of this petition and remands for appointment of counsel to aid Nole. Nole's pro se petition raises two issues: "Petitioner's right to challenge the Grand Jury's Array" and "Denial of Due Process to be taken before a magistrate for arrignment [sic]." Petition Under the Post Conviction Hearing Act, Comm. v. Nole, p. 3.

Relying upon this Court's decision in Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981), which interpreted Pennsylvania Rule of Criminal Procedure 1504, the Superior Court held that 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 ...


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