Commonwealth v. Garrison
Commonwealth v. Garrison
Opinion of the Court
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
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.
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.
Dissenting Opinion
dissenting:
On November 21,1977, appellant filed a petition under the Post Conviction Hearing Act. Counsel was appointed who filed an amended petition. On September 25, 1979, a hearing was held on the petition. Appellant filed a second PCHA petition on November 8, 1979, prior to any ruling on
Appellant argues that his second and third petitions alleged that court appointed PCHA counsel on the first petition, was ineffective. Therefore, he contends the court should have appointed yet new counsel and held another hearing on the second and third petitions.
As to the second petition, in my judgment, the court correctly denied relief. The first amended petition was still pending; it was premature to claim counsel was ineffective prior to any indication of his success or failure.
Reviewing the third petition, I likewise agree with the lower court and would affirm its decision. Contrary to appellant’s claim on this appeal, I do not find that the third petition alleged that prior PCHA counsel was ineffective. While he did check off the block, in the standardized petition, questioning counsel’s effectiveness, nowhere in the petition is there an indication that he was challenging PCHA counsel’s stewardship. Instead he challenged a photographic identification, and claimed he was not advised of certain rights or the existence of certain evidence. He did not claim that such challenges had not been finally litigated or waived because of petitioning counsel’s ineffectiveness.
The lower court had just recently decided, adversely to appellant, allegations of trial error and trial counsel’s ineffectiveness. Therefore, I believe the trial court properly, pursuant to Rule 1504 Pennsylvania Rules of Criminal Procedure, denied appellant’s third petition without the appoint
I respectfully dissent.
While appellant did check the box, contained in the standardized PCHA petition, indicating he was denied the assistance of effective counsel, nowhere did this petition refer to PCHA counsel as being ineffective.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Charles GARRISON, Appellant
- Cited By
- 11 cases
- Status
- Published