Appeal from the Orders dated October 27, 1983, in the Allegheny County Court of Common Pleas, Criminal Division, at No. CC 7902655.
Curtis Sawyer, in propria persona.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Cavanaugh, Olszewski and Kelly, JJ. Cavanaugh, J., joins in this opinion. Olszewski, J., files a concurring opinion.
[ 355 Pa. Super. Page 117]
Defendant-appellant Curtis Sawyer appeals from Orders denying his petition filed under the Post Conviction Hearing
[ 355 Pa. Super. Page 118]
Act*fn1 (PCHA) and denying his motion for recusal. The court below denied the petition without appointment of counsel or a hearing. For the reasons stated below, we vacate the Order denying the PCHA petition and remand for appointment of counsel. The Order denying appellant's recusal motion is affirmed.
The procedural history of this case is difficult to follow but necessary for resolution of the issues. Following a bench trial before the Honorable Samuel Strauss the appellant was convicted of burglary,*fn2 receiving stolen property,*fn3 and criminal conspiracy.*fn4 Post-trial motions were denied, and the defendant appealed. Appellant was represented by newly-appointed counsel, who raised several issues relating to trial counsel's effectiveness. While appellant's appeal was pending before the Superior Court, he filed a pro se PCHA petition, alleging only after-discovered evidence. Two weeks later, he notified the lower court by letter that he wished to withdraw this petition. Subsequently, the Superior Court entered an Order remanding appellant's direct appeal for a hearing in the lower court on the ineffectiveness of counsel claim. Prior to the hearing, the Commonwealth filed a brief in the lower court, addressing both the ineffectiveness of counsel and the after-discovered evidence claims. At the evidentiary hearing, the sole issue addressed was the alleged ineffectiveness of trial counsel, which was the issue raised on direct appeal. Although the after-discovered evidence claim raised in the PCHA petition was not mentioned during the evidentiary hearing, the lower court referred to the proceedings, in open court, as a "post-conviction hearing."*fn5 Several months later, the lower court filed an Opinion and Order. The Opinion addressed only the ineffectiveness issues, but concluded with an Order
[ 355 Pa. Super. Page 119]
stating that appellant's PCHA petition was denied. The record was then transferred back to the Superior Court, which affirmed the order. Nearly two years later, appellant filed his current PCHA petition. The appellant, acting pro se, alleged several ineffectiveness issues which had not been raised in the previous appeal. In the petition, appellant claimed that he was indigent, and requested that counsel be appointed to represent him. The appellant also filed a pro se motion requesting that Judge Strauss recuse himself from the case. Both the PCHA petition and the recusal motion were denied, without appointment of counsel. In support of its denial, the lower court cited an earlier order, where it had referred to the evidentiary hearing as a hearing on appellant's PCHA petition.*fn6 The court further stated that, "[u]nder the Post Conviction Hearing Act, you have but one opportunity to file for relief . . . [T]herefore, his application is denied." (Order of 2/3/83). Appellant then filed the instant appeal.*fn7
The first issue which we must resolve is whether the court below properly denied appellant's PCHA petition, without appointment of counsel or an evidentiary hearing. The applicable ...