Summary
In Commonwealth v. Benjamin, 219 Pa. Super. 344, 280 A.2d 625 (1971), the appellant, while in prison, filed a petition pursuant to the Post Conviction Hearing Act wherein he alleged, inter alia, that he was denied the effective assistance of counsel.
Summary of this case from Commonwealth v. JacksonOpinion
March 17, 1971.
June 22, 1971.
Criminal Law — Practice — Post-conviction relief — Averments of facts which if proven would entitle petitioner to relief — Grant of hearing — Post Conviction Hearing Act — Ineffectiveness of counsel — Denial of right to appeal.
Under § 9 of the Post Conviction Hearing Act of January 25, 1966, P.L. (1965) 1580, if a petition alleges facts that if proven would entitle petitioner to relief, the court shall grant a hearing; and this is especially true if the petition alleges either ineffective counsel or obstruction of the right to appeal.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 6, Oct. T., 1971, from order of Court of Common Pleas of Montgomery County, Nov. T., 1967, No. 270, in case of Commonwealth of Pennsylvania v. Roosevelt Benjamin. Order vacated and record remanded.
Petition for post-conviction relief.
Order entered dismissing petition, opinion by HONEYMAN, J. Defendant appealed.
Jonathan D. Herbst, Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, Executive Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
JACOBS, J., concurred in the result.
Submitted March 17, 1971.
Appellant, Roosevelt Benjamin, was charged with burglary and larceny, tried before a jury, convicted and sentenced. While in prison he filed a petition pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P. S. § 1180-1 et seq. (Supp. 1970). His petition alleged, inter alia, that he was denied the effective assistance of counsel. As an appeal was pending before this Court, the petition was held in abeyance pending the outcome of that appeal. We affirmed the judgment of sentence per curiam. Commonwealth v. Benjamin, 216 Pa. Super. 817, 266 A.2d 551 (1970).
On September 28, 1970, the Court of Common Pleas of Montgomery County dismissed the Post Conviction Hearing Act petition without a hearing stating that appellant's claims were patently frivolous or had been disposed of in prior proceedings. This appeal followed.
It is well established in Pennsylvania that if "a petition alleges facts that if proven would entitle the petitioner to relief the court shall grant a hearing." Post Conviction Hearing Act, supra, § 9; Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968). The above is especially true if the petition alleges either ineffective counsel, Commonwealth v. Rush, 212 Pa. Super. 437, 243 A.2d 159 (1968); Commonwealth v. Young, 218 Pa. Super. 272, 275 A.2d 866 (1971); or obstruction of the right to appeal, Commonwealth v. Davis, 433 Pa. 267, 249 A.2d 766 (1969).
Although the record is incomplete, it appears that the ineffective assistance of counsel claim has not been previously litigated. Petitioner is entitled to a hearing on this claim and any other issue not already waived.
Ordinarily, in the absence of clear and irrefutable on the record proof that counsel was ineffective, we will not decide an ineffective assistance of counsel claim on direct appeal. Rather, we will wait until an evidentiary hearing has given the Commonwealth an opportunity to show that the representation was effective under the standards enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Cf. Commonwealth v. Macek, 218 Pa. Super. 124, 279 A.2d 772 (1971).
The order of the court below is vacated and the record remanded for a hearing.
JACOBS, J., concurs in the result.