Appeal from the denial of the PCHA Petition in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 154, 155 & 156 DEC 77
John J. Duffy, Philadelphia, for appellant.
Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Com., appellee.
Cirillo, President Judge, and Cavanaugh, Wickersham, Wieand, McEwen, Del Sole, Tamilia, Kelly and Johnson, JJ.
[ 360 Pa. Super. Page 406]
This appeal is from the dismissal of the defendant's petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541, et seq. The sole issue presented is whether the petition for relief under the Post Conviction Hearing Act may be denied summarily because of delay in presenting that petition.
On November 1, 1977, the defendant was arrested and charged with the murder of his twenty-three year old girlfriend. While admitting to shooting the girl, he claimed the shooting was accidental and that he thought the gun was unloaded. It was established at trial that the victim had been strangled and slapped in the mouth just before her death which resulted from a contact gunshot wound to her head. It was further established that the victim was afraid of the defendant because of past physical abuse and that she planned to terminate their relationship. The defendant had displayed the gun to friends and loaded it in their presence on the afternoon of the killing.
The trial, before the Honorable Juanita Kidd Stout, was by jury and the defendant was convicted on April 11, 1978 of first degree murder and possession of an instrument of crime. He received a sentence of life imprisonment with a
[ 360 Pa. Super. Page 407]
concurrent two and one-half (2 1/2) to five (5) years term on the weapons charge.
This judgment of sentence was appealed to the Supreme Court of Pennsylvania which affirmed the judgment in Commonwealth v. McAndrews, 494 Pa. 157, 430 A.2d 1165 (1981).
On December 14, 1983, nearly two and one-half years after the Supreme Court decision, the defendant filed his petition alleging ineffectiveness of trial counsel. The only reason he gave for the two and one-half year delay was his attempt to raise funds to retain private counsel. The court below dismissed his petition without hearing or reviewing the record, determining that the delay was unreasonable and the petition, therefore, was frivolous. A subsequent motion for reconsideration was also denied by the trial court.
Initially, we would hold that delay in and of itself is not a basis for denying a P.C.H.A. petition. It is a relevant factor, among others, to be considered by the P.C.H.A. Court in determining whether or not the petition is frivolous. Only upon a review of the record and upon a determination that the petition was frivolous on its face, that it appeared that the issues raised have been decided on appeal, or are non-issues, should there be a dismissal without a hearing. The long delay is a relevant consideration in this review, and where there is no justification for the delay, the court may take a more stringent approach to the allegations raised in the petition, especially when the delay has resulted in problems of proof for the Commonwealth. Particularly, when the opportunity to have raised the issues earlier would have provided a more meaningful review with a greater capacity to reconstruct the record through testimony and other evidence, delay will play a much heavier role than otherwise. ...