Opinion
March 8, 1971.
May 20, 1971.
Practice — Post-conviction proceeding — Determination that petitioner was denied right of appeal — Allowance of amended petition setting forth all claims petitioner wishes to raise — Hearing on claims nonfrivolous and not clearly refuted by record.
Where it is determined in a proceeding for post-conviction relief that petitioner was denied the right to appeal, the PCHA court should permit an amended petition, setting forth all claims petitioner wishes to raise with respect to his conviction and sentence, and proceed to hear them if nonfrivolous and not clearly refuted by the record.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 25, March T., 1971, from order of Court of Common Pleas of Dauphin County, Sept. T., 1966, Nos. 601, 603, 607-609, and Jan. T., 1967, Nos. 65, 148, and 201, in case of Commonwealth of Pennsylvania v. Alfred Brown. Order reversed and record remanded.
Proceedings upon petition for post-conviction relief.
Order entered dismissing petition, opinion by LIPSITT, J. Defendant appealed.
Thomas C. Zerbe, Jr., Assistant Public Defender, for appellant.
Jerome T. Foerster, Assistant District Attorney, LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
WRIGHT, P.J., dissented.
Submitted March 8, 1971.
Appellant filed a PCHA petition in the court below attacking the validity of his guilty plea. The PCHA court granted petitioner the right to appeal, but did not pass upon the validity of the guilty plea. In such cases, the PCHA court should permit an amended petition, setting forth all claims petitioner wishes to raise with respect to his conviction and sentence, and proceed to hear them if nonfrivolous and not clearly refuted by the record. Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970).
Order reversed and the record remanded for proceedings consistent with this opinion.
WRIGHT, P.J., dissents.