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COMMONWEALTH PENNSYLVANIA v. MICHAEL BARNES (04/16/85)

submitted: April 16, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL BARNES, APPELLANT



Appeal from the Order entered March 28, 1984 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 221 to 222 August Term, 1974.

COUNSEL

Harold Diamond, Philadelphia, for appellant.

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

Beck, Wickersham and Cercone, JJ.

Author: Beck

[ 344 Pa. Super. Page 333]

This is an appeal from an order granting the Commonwealth's motion to dismiss a PCHA petition. Appellant was convicted of conspiracy and second degree murder by a jury in 1975. He was sentenced to life imprisonment for the murder conviction and a concurrent 5 to 10 year term for the conspiracy conviction. Judgment of sentence was affirmed. Commw. v. Barnes, 273 Pa. Super. 295, 417 A.2d 656 (1979). Appellant filed a pro se PCHA petition in 1983. Counsel was appointed who then filed an amended petition in the same year. The Commonwealth filed a motion to dismiss. A hearing on the motion was held, at which the merits of the petition were never discussed. The motion to dismiss was granted. At no time were the merits of the petition reviewed. This appeal followed.

The trial judge granted the motion to dismiss solely upon the basis of a 3 year delay between the time of the final decision on appeal and the time that appellant first filed his pro se petition. The judge noted expressly that he was not examining the merits of the petition. Appellant claims that this was error. We agree and, accordingly, remand for proceedings not inconsistent with this decision.

[ 344 Pa. Super. Page 334]

The judge indicated that he was dismissing the petition under the doctrine of Commw. v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commw. v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commw. v. McCloud, 312 Pa. Super. 29, 458 A.2d 219 (1983); and Commw. v. Kale, 312 Pa. Super. 69, 458 A.2d 239 (1983). Apparently, the judge read those cases as requiring the dismissal of a PCHA petition, regardless of its merit, whenever there is a delay between the final decision on appeal and the time when a petition is first filed.

We disagree with this reading of those cases. The delay between the final decision on appeal and the filing of a PCHA petition is only one factor to be considered in determining the merits of a petition. Shaffer, 498 Pa. 342, 354, 446 A.2d 591, 597 (Roberts, J. concurring with O'Brien, C.J. and Nix, J.); Alexander, 495 Pa. 26, 36, 432 A.2d 182, 186-87; McCloud, 312 Pa. Superior Ct. 29, 32 n. 3, 458 A.2d 219, 220 n. 3; Kale, 312 Pa. Superior Ct. 69, 72, 458 A.2d 239, 241. Ironically, the judge stated an appropriate paraphrase of the prevailing standard in rejecting appellant's reading of these cases at argument on the motion to dismiss:

I don't want to cloud up the issues by saying when there's a delay there's some question as to whether or not there are issues of arguable merit . . . . That's a different doctrine. I don't want to get the two confused.

(N.T. 3/28/84, pp. 6-7).

The judge thus correctly noted that a delay casts some doubt on whether the issues in a PCHA petition are meritorious. He, however, erroneously assumed that the cited cases required dismissal ...


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