Commonwealth v. Nole

319 Pa. Super. 593 (1983) 466 A.2d 703

COMMONWEALTH of Pennsylvania
v.
John F. NOLE, Appellant.

Supreme Court of Pennsylvania.

Submitted March 2, 1983. Filed October 7, 1983. Petition for Allowance of Appeal Granted February 3, 1984.

Mitchell S. Strutin, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.

PER CURIAM:

John Nole was convicted of murder in the first degree, robbery, burglary and carrying a concealed deadly weapon. A sentence of life imprisonment was affirmed by the Supreme Court. Commonwealth v. Nole, 448 Pa. 62, 292 A.2d 331 (1972). A subsequent petition for relief under the Post Conviction Hearing Act was dismissed after a counselled hearing, and the dismissal order was affirmed on appeal. Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975). A second P.C.H.A. hearing was filed pro se and dismissed without hearing or the appointment of counsel. No appeal was taken. A third P.C.H.A. petition was then filed and again dismissed without the appointment of counsel. Thereafter a timely appeal was filed on Nole's behalf by counsel who has now requested that the matter be remanded so that an amended P.C.H.A. petition can be filed.

We are constrained to agree that a remand is necessary. Under the decided cases, a petition for post conviction relief may not be dismissed summarily without counsel unless a previous petition involving the same issue or issues has been finally determined adversely to the petitioner in a counselled proceeding or one in which he knowingly waived the right to counsel. Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981); Commonwealth v. O'Nealel, 315 Pa.Super. 1, 461 A.2d 318 (1983); Commonwealth v. Cochran, 261 Pa.Super. 236, 396 A.2d 375 (1978). See also: Pa.R.Crim.P. 1503, 1504. The issues which appellant wishes to raise appear not to have been litigated in prior, counselled proceedings.

Reversed and remanded to permit counsel to file an amended P.C.H.A. petition. Jurisdiction is not retained.