Appeal from the Order of Superior Court, entered on April 17, 1986, at No. 203 Harrisburg 1985, vacating the order of the Court of Common Pleas of Dauphin County entered on March 7, 1985 at No. 2678 C.D. 1972, and remanding for an evidentiary hearing, 356 Pa. Super. 603, 512 A.2d 724 (1986).
Richard A. Lewis, Dist. Atty., Yvonne A. Okonieski, Deputy Dist. Atty., for appellant.
Francis M. Socha, Richard F. Moffett, Harrisburg, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., concurs in the result. Nix, C.j., files a dissenting opinion.
We granted the Commonwealth's petition for allowance of appeal to consider the propriety of Superior Court's order vacating the PCHA court's dismissal of appellee's third PCHA petition without a hearing, and remanding for an evidentiary hearing.
The lengthy procedural history of appellee's case is as follows. Appellee was convicted of murder of the first degree on April 4, 1973, in connection with the stabbing death of one Walter Yingling, in Harrisburg. His direct appeal which was filed with this Court was quashed because of noncompliance with our rules relating to the service of the notice of appeal; however, the appeal was later reinstated. In that appeal, appellee challenged the sufficiency of the evidence, the adequacy of the charge regarding accomplice testimony, and trial counsel's effectiveness for inadequately requesting an accomplice charge. The challenge failed, and we affirmed the judgment of sentence, per curiam, Commonwealth v. Hagood, 473 Pa. 379, 374 A.2d 693 (1977).
Before his appeal to this Court was reinstated, appellee filed a petition for writ of habeas corpus in federal court. This petition was dismissed for failure to exhaust state remedies.
After his unsuccessful direct appeal, appellee again sought relief in the federal forum. There he raised substantially the same issues as were raised in his direct appeal. That petition was also denied.
In 1978, appellee filed his first PCHA petition wherein he again alleged trial counsel's ineffectiveness. In this petition, counsel's assistance was assailed for failing to make proper investigation of a potential alibi witness; however,
appellee's own trial testimony had already established that appellee could not recall whether he was with this particular witness on the evening of the homicide. Thus, the petition was denied without a hearing, and we ...