Commonwealth v. Garrison

450 A.2d 65, 303 Pa. Super. 555, 1982 Pa. Super. LEXIS 5083

Opinions

HOFFMAN, Judge:

Appellant contends the lower court erred in summarily dismissing his pro se PCHA petition. We agree and, accordingly, reverse and remand for appointment of counsel and further proceedings consistent with this opinion.

Appellant was convicted on May 30, 1975, and his judgment of sentence affirmed on direct appeal. Commonwealth v. Garrison, 249 Pa. Superior Ct. 546, 377 A.2d 170 (1977). Appellant filed a pro se PCHA petition on November 21, 1977; counsel was appointed; the petition amended; a hearing held on September 15,1979; the petition denied on April 24,1980; and no appeal taken. Appellant had filed a second pro se PCHA petition on November 8, 1979, prior to any ruling on the first petition, and the lower court denied it as premature. Appellant filed his third pro sc PCHA petition on June 6,1980, and the lower court summarily dismissed it, prompting this appeal.

A PCHA petition may be summarily dismissed only when a previous counseled petition raising the “same issue or issues” was determined adversely to the petitioner. Pa. R. Crim. P. 1504. Otherwise, the court must appoint counsel and afford an opportunity to amend. Id. 1503. Pro se PCHA petitions must be “read with liberality.” Commonwealth v. Fox, 448 Pa. 491, 494, 295 A.2d 285, 287 (1972). Though appellant’s pro se PCHA petition reiterates several previously litigated suppression issues, it also alleges the extraordinary circumstance of prior counsel’s ineffectiveness, see Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), presumably including prior PCHA counsel, and asserts that appellant was not properly advised of his rights.

Footnotes

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* Because these were new issues properly raised, summary dismissal is precluded. Accordingly, we reverse the lower court and remand for appointment of counsel and further proceedings consistent with this opinion. Jurisdiction relinquished.

VAN der YOORT, J., files a dissenting opinion.

Moreover, appellant’s second pro se PCHA petition had alleged that the Commonwealth withheld exculpatory evidence. The court denied that petition as premature. Appellant did not reassert that issue in his current PCHA petition. To infer that appellant abandoned this claim would charge a pro se petitioner with a duty to appreciate and plead according to the distinction between a temporary and final denial of an issue, contrary to the standards of review in Commonwealth v. Fox, supra.