Appeal from the Order of the Superior Court Entered a=t No. 314 Pittsburgh, 1984, on March 29, 1985, Affirming the Order of the Court of Common Pleas of McKean County, Criminal Division, Entered at No. 66 September Term, 1975 on March 7, 1984. Pa. Superior Ct. , 496 A.2d 855 (1985).
James K. Angell, Sp. Prosecutor, Smethport, for appellant.
Charles J. Duke (Court-appointed), Bradford, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ.*fn* Zappala, J., files a dissenting opinion.
This is the appeal of the Commonwealth of Pennsylvania (Appellant) from the Per Curiam Order of Superior Court affirming an Order of the Court of Common Pleas of McKean County granting relief to Richard K. Wells (Appellee) under the Post Conviction Hearing Act (PCHA).*fn1
Appellee was convicted of murder of the second degree in McKean County on March 3, 1976, and following the dismissal of post-verdict motions, he was sentenced to a term of life imprisonment. No direct appeal was taken. On June 26, 1979, Appellee filed a pro se PCHA Petition in which he alleged that both trial and post-verdict motions counsel rendered him ineffective assistance resulting in the denial of his Pa.Rule of Criminal Procedure 1100 (prompt trial) rights. By Order and Opinion dated October 8, 1981, the trial court granted Appellee's petition and ordered his discharge from custody. The Commonwealth appealed to Superior Court and, in an opinion authored by the Honorable James E. Rowley, the Court vacated the order of October 8, 1981, and remanded the matter to the trial court so that it could conduct a hearing on the allegations raised by the Petition. Commonwealth v. Wells, 322 Pa. Superior Ct. 380, 469 A.2d 672 (1983).
Pursuant to Superior Court's direction, hearings were conducted before President Judge Fink, the trial judge, on January 31, 1984, and February 24, 1984, following which an Opinion and Order were filed again granting Appellee's Petition and ordering Appellee's discharge. The Opinion and Order were filed on March 8, 1984, and made effective on March 15, 1984.
Appellant filed its appeal with Superior Court which stayed Appellee's release pending its disposition of the appeal. That Court, by its Per Curiam Order of March 29, 1985, affirmed the trial court's order, without publishing an opinion. Commonwealth v. Wells, 345 Pa. Superior Ct. 623, 496 A.2d 855 (1985).
Appellant thereupon filed a Petition for Allowance of Appeal arguing that neither the PCHA court nor the reviewing court applied the correct standards in analyzing Appellee's ineffectiveness claims. Our preliminary review of the record indicated to us that the lower courts did, in fact, grant Appellee's Petition without first applying the standard required in such cases by Commonwealth ex rel. Page ...