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COMMONWEALTH PENNSYLVANIA v. EUGENE W. MORGAN (07/14/86)

submitted: July 14, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
EUGENE W. MORGAN, APPELLANT



Appeal from the PCHA Order of December 12, 1984 in the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. 26 to 43, 1964 and 47 to 48, 1964.

COUNSEL

John A. Halley, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Watkins, Hoffman and Hester, JJ.

Author: Hoffman

[ 357 Pa. Super. Page 159]

This is an appeal from an order denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. ยงยง 9541-9551. Appellant contends that the lower court erred in denying post-conviction relief without a hearing and without the appointment of counsel. We find that this contention has merit and, therefore, reverse the lower court's order and remand the case for proceedings consistent with this opinion.

In June of 1964 appellant pleaded guilty to numerous counts of burglary. Appellant was sentenced to two-and-one-half-to-five years imprisonment and two consecutive terms of twenty years probation. No appeal was filed. In 1968, appellant filed a pro se PCHA petition. Counsel was appointed to represent appellant, but he neither entered an appearance nor amended appellant's PCHA petition. After the Commonwealth had answered, but before the lower court took any action, appellant withdrew the petition. In 1977, appellant filed a second pro se PCHA petition and a petition to withdraw his guilty pleas. The lower court ordered the Commonwealth to show cause why a hearing should not be granted, but did not appoint counsel to represent appellant. The Commonwealth filed an answer to the petition, but the record does not reveal any further action in connection with either the PCHA petition or the petition to withdraw the guilty pleas.

In 1984, appellant's probation was revoked as a result of another conviction, and he was sentenced to imprisonment for two-and-one-half-to-twenty years to run consecutive to any sentence then being served. Appellant filed a pro se petition to withdraw his guilty pleas to the 1964 charges. This motion was denied without the appointment of counsel, a hearing or an opinion by the court. No appeal was taken from that order.

In October 1984, appellant filed the instant PCHA petition. This petition was also filed pro se. As in his prior

[ 357 Pa. Super. Page 160]

PCHA petition, appellant contends that his confession was coerced, that his statements were made without the assistance of counsel, that his guilty pleas were unlawfully induced, that he was unaware of his rights at the time of his guilty pleas, that he was denied effective assistance of counsel, and that he was denied his right to appeal.

The lower court denied the instant PCHA petition without the appointment of counsel or holding a hearing, finding that it was "patently frivolous" and that the issues raised had been waived. See Order of December 12, 1984. Appellant filed a timely appeal and counsel was appointed to represent him.

Appellant contends that the lower court erred in dismissing the instant PCHA petition without appointing counsel and holding a hearing. We agree. A pro se PCHA petition may not be summarily dismissed 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 he or she voluntarily waived the right to assistance of counsel. See Pa.R.Crim.P. 1503, 1504. See also Commonwealth v. Finley, 497 Pa. 332, 334 n. 1, 440 A.2d 1183, 1184 n. 1 (1981); Commonwealth v. ...


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