Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 7907250.
John A. Halley, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, President Judge, and Rowley and Wieand, JJ. Spaeth, President Judge, files a dissenting opinion.
[ 348 Pa. Super. Page 11]
Roland Smith, Jr. was tried by jury and was found guilty of involuntary deviate sexual intercourse.*fn1 Timely post-trial motions were dismissed, and the trial court sentenced
[ 348 Pa. Super. Page 12]
Smith to not less than six nor more than twelve years in prison. The judgment of sentence was affirmed per curiam by the Superior Court on May 28, 1982. A P.C.H.A. petition filed during the pendency of the direct appeal was dismissed because the trial court lacked jurisdiction to hear it. In March, 1983, Smith filed a second P.C.H.A. petition. Counsel was appointed to represent Smith, but thereafter the petition was dismissed without hearing on October 18, 1983. In response to a petition for reconsideration, the P.C.H.A. court vacated its prior order and, on November 9, 1983, gave Smith a period of twenty days within which to file a reply to the answer which the Commonwealth had filed to Smith's P.C.H.A. petition. A reply was thereafter filed, and an evidentiary hearing was held. On April 30, 1984, the court entered an order denying relief. Smith did not file a timely appeal from the court's order.
On July 18, 1984, Smith filed a petition for permission to appeal nunc pro tunc from the order denying post conviction relief. Attached to his petition was a copy of a letter which bore the date of May 12, 1984, and contained language directing counsel to file an appeal from the order denying appellant's P.C.H.A. petition. With respect to the copy of the May 12 letter, the petition recited:
4. By letter dated June 30, 1984, Mr. Smith indicated [to counsel] that he had mailed a request to counsel in May, 1984, asking for an appeal to the Superior Court. Mr. Smith included a copy of a letter he states was sent on or about May 12, 1984, to counsel. Copies of these letters have been attached to the petition and are labeled Exhibits C and D.
5. Counsel did not receive the letter dated May 12, 1984, until he received the June 30, 1984, letter from Mr. Smith.
6. Counsel believes and, therefore, avers that Mr. Smith desired to timely appeal the denial of post conviction ...