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COMMONWEALTH PENNSYLVANIA v. MARSHALL W. JENKINS (04/01/87)

filed: April 1, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
MARSHALL W. JENKINS, III, APPELLANT



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC8309025A.

COUNSEL

Dennis I. Turner, Pittsburgh, for appellant.

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

Montemuro, Popovich and Montgomery, JJ. Montemuro, J., files a concurring and dissenting opinion.

Author: Popovich

[ 362 Pa. Super. Page 140]

This is an appeal from the order of the court below summarily denying Post-Conviction Hearing Act*fn1 relief to the appellant, Marshall W. Jenkins, III. We affirm.

While on parole, the appellant was arrested for simple assault and harassment causing his re-commitment. A subsequent jury trial ended in a not-guilty verdict being returned on the charge of simple assault. However, the trial court, sitting as a magistrate, found the appellant guilty of harassment and imposed a ninety-day prison sentence.

The period of incarceration had already been served by the time it was levied. Presumably, the appellant's status as a parole violator kept him in jail, and this period of imprisonment was credited against the ultimate sentence imposed. We affirmed the appellant's appeal on June 21, 1985 (at No. 1045, Pittsburgh 1984).

Thereafter, the appellant's PCHA petition, claiming that his conviction was the result of the ineffectiveness of counsel, was dismissed on August 23, 1985, because of the trial court's determination that "the Post Conviction Hearing Act d[id] not apply to defendants convicted of summary offenses."

The appellant's efforts to proceed in forma pauperis and to secure the appointment of counsel were likewise denied on the same basis. Nevertheless, the appellant was ultimately granted the right to prosecute an appeal from the August 23 order. This Court, by per curiam order, remanded for reconsideration of the appellant's request for counsel and the determination of whether he had alleged sufficient collateral consequences to support his PCHA petition in light of Commonwealth v. Markley, 348 Pa. Super. 194, 501 A.2d 1137 (1985).

[ 362 Pa. Super. Page 141]

The trial court's reconsideration on remand did not alter its original belief that the PCHA was not intended to apply to defendants convicted of summary offenses (e.g., harassment). This appeal followed and questions the propriety of the trial court's conclusion that the potential, remedial benefits of the PCHA are not available to one convicted of a summary offense.

The issue raised is a novel one in that it has not been addressed on its merits by an appellate court. To the extent that the trial court and the Commonwealth insinuate that we are bound -- as if to say we are precluded from ever examining the subject again -- because of our previous affirmance of a Common Pleas Court decision finding the PCHA inapplicable to summary offenses,*fn2 we disagree, especially when ...


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