*1 lеgis- opinion completely majority reverses the The mandatory precedent requiring judicial of and lative exigen- except compliance the where Section with require reason- Their otherwise. of court business cies provisions of ing all of the forces the conclusion exception merely directory the with 977 are Section day requirement. the initial majority’s quarrel observation I have the with ju- definitely ‘purely “scheduling hearings is function’, ‘specifying time of the dicial also . I here however, manner of notice. . .’” note, scheduling of hear- we are not concerned days statutory ing February limit, three after objection re- has been an the directions nor there garding hearing. manner of for the service moving party present only had issue arose after the al- failed to effectuate service the manner and time re- court, lotted for the convenience spondent-objector, improperly rescheduled the original Justifying and altered method of service. legislative upon distortion intentions this clear having jurisdiction theory gained that the court once judi- attempt disguise never loses is but a it, weak legislation by blatantly specious reasoning. cial I would reverse the order the court below comply dismiss the failure with the statu- tory mandates. heavy practical admittedly matter, As a his service. trial schedule suggest peculiar accessibility process. service
would Appellant. v. Cornitcher, Commonwealth *2 J., C. 1971. Before Bell, November 8, Submitted Pomeroy Bar- Roberts, O’Brien, Eagen, Jones, JJ. bieri, *3 De- W. Assistant Levin and John Packet,
Andrea appel- for Defender, Vincent J. Ziccardi, and fenders, lant. and Milton M. Assistant E. Class Stein,
Deborah Dis- D. Deputy James Attorneys, Crawford, District Assistant First Richard Attorney, Sprague, trict Arlen District Attor- and Specter, Attorney, District Commonwealth, appellee. ney, Opinion Roberts, May 25, 1972: Justice Mr. after Cornitcher was convicted, Herbert Appellant of a con- 1963, conspirаcy, carrying by jury trial aggravated assault and weapon, battery, deadly cealed with intent to battery ravish, and indecent as- assault four rape. He sentenced to to sault, eight years on the and sentence was sus- rape indictment, pended on the indictments. remaining petition
On se April 3, pro filed a 1970, appellant for post-conviction recently that he had relief,1 alleging discovered that one of trial had been jurors at his 1970, him. personally prejudiced 29, On against May after a hearing solely ap held to determine whether had pellant waived his to right prejudiced- assert juror claim,2 At appellаnt’s was dismissed. petition make hearing, appellant’s counsel certain attempted amendments se appellant’s pro petition, but Superior court denied his The request. affirmed the dismissal per petition curiam order, Judges Hoffman, Spaulding, dissenting. Commonwealth v. Cornitcher, Cercone 1 Appellant’s petition pursuant was filed the Post Conviction Hearing Act, January 25, 1966, seq., Act of P. L. §§1 et seq. 1970) (hereinafter (Supp. 19 P.S. §§1180-1et referred to as P.C.H.A.). May limiting There is no record of an order hearing solely question only waiver, to the statement hearing judge appellant’s petition dismissing that the made in was: your everything, “In consideration Petition is dismissed with the appeal thirty days.” However, within our review May 29, record us convinces was in fact question only ground limited to the waiver. the Com- petitioner’s request monwealth asserted its answer for Post Conviction relief was waiver. The Commonwealth “1. Pe- claimed: present opinion titioner’s must dismissed. A full Doty petitioner’s pe- written the Honorable Ethan Allen last Opinion 17th, tition. See of December 1969. the Com- *4 Wheeefobe, hereby requests petition summarily monwealth that this dis- missed.” Commonwealth’s to Answer Petition for Post Conviction 9, 1970). (April Moreover, May the,assist- hearing Relief at the attorney presented ant district framed issuе “Now, as follows: filing grounds. Petition. we have a third He waived the of those only question properly that he could raise here would be if any extraordinary there circumstances are involved.” Subse (1970).3 Ct. A. 2d Superior allocatur. this Court granted quently the hearing before this that argues Appellant on the grounds dismissed his improperly petition court re- refused defense counsel’s improperly of waiver, file amendments to se appellant’s pro petition. to quest we reverse agree appellant. Accordingly, We with of the order Superior order of the Court and vacate remanded the hear- court. Thе record is to hearing amendments court direction to allow counsel’s ing with direction to se and with appellant’s pro petition hold a merits of appellant’s prejudiced- on the juror claim.
I. The
Amendments
Rejected
PCHA
At
of appellant’s May 29, 1970,
start
hearing, appellant’s
requested permission
make
pro
petit
certain amendments
se
appellant’s
Appel
ion.4 This
request was denied
court.
in
lant
he
alleges
would amend his
States,
a claim under Bruton United
clude, inter
alia,
391 U.S.
544 apрropriate §4(a), §1180-4(a), in- to it is P.S. we believe 19 disagreement dicate our that assertion. petitioner’s petition represents third us is now before attempt Hearing Act. to obtain relief under the Post Conviction petitioner petition, In con his first claimed that a co-defendant’s unlawfully against him fession at trial. had been introduced hearing petition April 3, 1967, in the This denied was after Philadelphia petitioner repre was Common Pleas at which Court by appeal sented An decision counsel. taken from this to was Superior hearing Court which denial on Octo affirmed court’s Superior 710, 27, Cornitcher, ber 1967. Commonwealth 211 Pa. Ct. January 3, 1968, A. 234 2d On Court denied allo 223 this catur as No. 470-A Miscellaneous No. Docket 15. May 20, Supreme 1968, On Bruton United States Court in States, 123, 1620, pre v. United 391 S. overruled U.S. Ct. its States, vious decision in Delli United Paoli v. U.S. S. (1957), Ct. and held non- that admission of the confession of a testifying implicating co-defendant the defendant violates the Con 10, 1968, frontation in Clause Sixth Amendment. On June Russell, Supreme Roberts v. 392 U.S. 88 S. Ct. Court expressly applicable that Bruton held states and is applied retroactively. be 20, 1968, appellant petition. On November filed his second PCHA petition by pleas This was dismissed the common court with the following holding: by “Since all issues raised defendant in this present finally рetition litigated have been moreover raised disposed prior post proceedings, conviction it is clear that present petition hearing.’’ defendant's be must dismissed without clearly A ap- review of the record establishes that no pointed petitioner petition. to assist with his second PCHA There absolutely appointed is indication in no the record that counsel was petitioner proceeding. Moreover, assist the Post Convic- only Hearing requires appointed tion Act that counsel be when the hearing required petition, trial court concludes on the §12, amended, (Supp. 1971), §1180-12 PCHA as P.S. and herе held. was. regarded finally Bruton litigated Petitioner’s claim cannot be as by petition, petition first of his virtue was dismissed hearing court, and the court’s dismissal was af- Superior firmed Bruton was decided. before As we Gates, 453, 457, noted in Commonwealth regarded (1968), finally issue an will not be litigated if changes applicable “retroactive in the been there have law.” The Act6 Hearing 7 of Post Conviction Section or with leave amend may grant “The court states: shall time. Amendment any at draw the justice. substantial to achieve freely allowed order for want of particularity No be dismissed petition may *6 an opportunity is petitioner given unless the first clarify petition.” (Emphasis added.) his that mandate in of Section
Appellant, 7’s light was that be contends it “freely allowed,” amendments aspect recognizes expressly Hearing of Post Conviction Act abridge- finality by providing showing “The rules for relief on a of: any right guaranteed by laws . or ment ... . . Constitution of recognised including as States, that a was not United retrospec- requires existing at the time trial the constitution if of application right. §3(12), §1180- . .” 19 P.S. tive that . PCHA of Bonaparte, 3(12) (emphasis added). Pa. Commonwealth v. 210 See Superior (1967). 93, 95, 12, Ct 232 A. 2d 13 by litigated finally petitioner’s regarded Nor be as can claim petition petition, though virtue of his second even that PCHA place, subsequent issue filed to Bruton. In the first in order an regarded finally litigated proceeding, the Post to be in a certain “ruling Hearing requires that there Conviction Act proceeding. §4(a), of P.S. merits the issue” in 19 §1180-4(a) (Supp. 1971). Here, no was held where reaching judge, petition- of where the trial rather than the merits only petitioner’s claims, all of er’s ruled claims had been “fi- nally certainly “ruling litigated,” there no on the merits” petitioner’s Bruton claim. petitioner’s regard- place, In the Bruton cannot be second claim finally litigated by petition virtue his
ed as second PCHA be- appointed petitioner peti- no ioas assist cause expressly petitioner held: a PCHA not tion. We “Where is by petition represented counsel an adverse decision on his presented meaning litigation of the issues there final within the Hearing Conviction Act. Post Commonwealth v. of Sec. 4 Seymour, A. Pa. 259 2d 676 : Commonwealth Superior 158, 162, Johnson, (1968).” Pa. Ct. 239 A. Haywood, 177, 178-79, Commonwealth 2d 727 January (1965) 1580, §7, P. U. Act of 19 P.S. §1180-7 1970). (Supp.
error for the hearing court to refuse to permit amend- ments proposed by counsel to se pro petition. Commonwealth apparently argues per- Section mits. amendments to eliminate defects particularity, but does not рermit additional issues be raised . amendment.
There is
absolutely
support
language
Section 7 for the Commonwealth’s contention.
In fact,
Rule 150G of the Pennsylvania
Pro-
Rules
Criminal
cedure, adopted to
Hear-
implement
the Post Conviction
ing Act, clearly indicates
that additional
may
issues
be raised
amendment.
That rule
states
relevant
part: “When the court grants a
hear-
post conviction
.
ing, it shall
. .
extend
may
[h]old
to the issues raised in
only
or
pe-
amended
. .
tition.
.” (Emphasis added.)
ban
Moreover, to
if
amendments
raise addition-
they
al issues would completely undermine the major pur-
*7
the
pose of
Post Convictiоn Hearing
discourage
Act—to
piecemeal litigation
post-conviction claims. A large
of PCHA
majority
petitions are composed either
the
by
or'
a
prisoner
jail house
In
lawyer.
many instances
counsel is not appointed until after the court receives
the
after
petition. Frequently,
talking with the prison-
er and
reviewing
transcript
trial,
realizes that
there are additional meritorious
issues to
If
be raised.
raising
amendments
issues
included
in
se
prisoners’
pro
petitions were
we
prohibited,
be unable to presume
petitioner
would
that
knowingly
and understandingly waived those issues. For as we
v.
stated
Commonwealth
Mumford,
Pa. 451, 243
: “[Wjaiver
A.
may
2d
be presumed only
had counsel
where
at
petitioner
the time the waiver
Id.
occurred.”
at
allegedly
A. 2d at 442. See
Satchell,
Commonwealth
Perhaps amendments to PCHA refuse may properly peti- court But in the case at hand there was absolutely tions. judge the hearing In reason to do so. apparent fact, impression mistaken operating seemed to under automati- petition raised one could issues not we petition. Consequently, be raised later cally have been permitted conclude that should petitioners include issues. to his to the additional petition аmend Claim Prejudiced-Juror II.
There are conceivable theories upon two might have based its determination hearing court his right prejudiced-juror waived assert appellant ap might claim.7 court have concluded that First, failing waived his to assert his claim pellant proceedings. to raise at trial or in court subsequent it §4(b) P. January 25, (1965) 1580, See Act L. 19 P.S. court (b) (1). Second, might (1), §1180-4 Commonwealth concluded, have as the argues that defense ask questions counsel’s failure to appeal, the al may brought light on voir dire which from prejudice juror prevents appellant leged raising claim. See Commonwealth Aljoe, now 54-55 How 198, 205-07, neither can analysis, sup of these theories upon ever, waived Ms as port finding light claim. his prejudiced-juror sert The PCHA before us presently rep- attempt third post-convic- secure resents pellant of his support Unfortunately, appeal apparently its order as required did the dismissing appellant’s petition. not serve *8 hearing the Rules of the upon court did the hearing not write Supreme court an However, any opinion notice ap Pennsylvania, 63. Rule relief in
tion our state courts. After a on Feb- hearing ruary 21, 1967, first appellant’s was and that dismissed, dismissal was affirmed the Su- perior Court on 1968. second Jаnuary 5, Appellant’s petition was dismissed without on December and no 17,1969, appeal was taken from dismissal. In neither of these did petitions raise appellant prejudiced-juror claim which he now asserts. at the
However, hearing on the is now petition that before us, appellant testified that before he his trial an had altercation a man with who on Ave- lived Cedar nue Philadelphia. After his appellant trial, aby told prisoner fellow that this man appellant whom had fought had been a juror Ap- at appellant’s trial. had not pellant recognized juror the time his at trial since had been appellant at the time intoxicated of the fight.
Appellant thereupon contacted a Mr. Pepp Defender Association of Philadelphia. Mr. for- Pepp warded to appellant a list to include purporting names of all of the jurors at This appellant’s trial. list was offered into evidence at below. Since the name of the individual who lived on Cedar whom Avenue, appellant the al- allegedly had tercation, did not on this appear list, did not appellant claim prejudiced-juror raise in his first or second PCHA petition.
However, subsequently and ob- requested list the jurors tained second at trial from the clerk. This court second contained list name appeared had not the first list. Appellant alleged who was named in individual the second list list the first man but from Cedar Ave- he had fought prior whom to his nue with trial. testimony is If it is believed, clear that regarded having he cannot now waived his preju- *9 that he “knowingly claim on the dieed-juror ground have it and it could failed to raise understandingly on been raised at trial, appeal, before the trial, ac- or other corpus proceeding any proceeding habeas ini- actually in a tually prior proceeding conducted or January 25, tiated under this act. . . .” Act of P. L. §1180-4(b) 19 P.S. (1965) 1580, §4(b) (1), Sincе (Supp. 1970) (emphasis added). appellant not juror aware of the alleged presence prejudiced at his trial until after he first second had filed his he not” raised petitions, “could have the issue Since no on previously. reason to dis- appears the record believe appellant’s and since we have indi- testimony, cation that the hearing judge disbelieved appellant’s testimony, we conclude that cannot be re- appellant garded waived his having claim under §4(b) (1) the Post Conviction Act. Hearing
However, on Common- Commonwealth, relying wealth Aljoe, 205-07, 216 54- 55 (1966), argues appellant’s counsel to ask failed questions voir dire which may brought have light the alleged prejudice of the juror, this failure bars from his claim. raising “ In Aljoe didwe announce the rule that: ‘It is the duty of the parties to ascertain, by proper examina- tion at the time the jury empaneled, existence of reason any objection jurors. . . . fail- [T]he ure to do so and to make objection at the time proper as a operates waiver at Pa. 206-07, A. 2d 55. at “ further
However, we noted in A ljoe: . That be relieved may against waiver when the party affected has been misled or intentionally deceived by the juror . . .’. . . .” 420 at A. 2d at 55. in the
The flaw Commonwealth’s argument is that appellant’s trial the record does not indicate wheth- 550. if questions which, counsel asked appellant’s or not
er brought light would truthfully, answered the voir The record of juror. alleged prejudice only indicates below,8 set foi’th relevant dire, part jurors. challexige any counsel did not appellant’s or does not indicate The record whether *10 ap In it jury. fact, to the put any questions asked were questions from the record some pears not recorded. counsel for a co-defendant and were by there was At the on petition, to the Commonwealth either or attempt by transрired to any introduce further evidence as what dire. determinative question at the voir the Therefore, non- compliance of or is who has the burden proving with the of compliance requirements Aljoe'i an “impartial” We note the to initially right the is not Constitution of jury only guaranteed by the Amend- Commonwealth of but the Sixth Pennsylvania,9 Dwyer appellant, Stevens Mr. Mr. trial counsel for Dwyer, for was counsel Mr. two co-defendants: “The Court: your awaiting yesterday your appearance after- absence and while noon, listed, and also of the we in view fact case was your inspection. jury. jury is there for inter- called a The In the your you jury client, called, if to of desire have a new will est we you you any Otherwise, it. can do whatever make do wish or underway. challenges get Stenographer’s so that can the matter we Trojak challenged by (Juror 64, J. Mr. No. Walter Note defense, Stevens, 47, Paglieri counsel for the and Juror No. Nello him.) please, Your the : If Honor was substituted Mr. Stevens satisfactory. Dwyer: jury satisfactory jury The to is now Me. me.” I, 9, Section Article Constitution of the Commonwealth part: Pennsylvania prosecutions “In states all criminal the speedy right pubUc impartial ... a to a trial hath accused an jury. ...” long Pennsylvania
Moreovеr, been it has the law of if a juror voir dire has the misled defendant and was in ac- against defendant, tuality prejudiced given by relief will be ap an jury10 ment’s has been guarantee impartial plied the states the Due Process through clause Amendment.11 As the States Fourteenth United Irvin Supreme 717, Court held U.S. Dowd, 81 Ct. S. : “In 1639, essence, trial jury guarantees criminally accused fair panel trial ‘indifferent’ impartial, jurors. an failure accord accused a fair vio lates the minimal even standards . . process. of due . ‘A fair trial in a fair tribunal is a basic requirement of due In re process.’ Murchison, U.S. 133, 75 S. Ct. L. 942.” Ed.
Two cases from
Third
illustrate that
Circuit
due procеss guarantee
impartial
of an
jury invalidates
criminal
trials where even
single
is discovered
juror
to have been
or
partial
prejudiced
defend
against
ant.
In
States ex
DeVita McCorkle,12
United
rel.
Appeals
ordered a new
when
trial
it was dis
covered that a
at the
juror
defendant’s trial had con
*11
cealed the fact
he
had
in
recently been robbed
same vicinity and in a fashion similar
to the robbery
murder of which defendant was
In United
accused.
States ex rel. Fletcher v. Cavell,13 a case
from
arising
granting
e.g.,
See,
McCloskey,
of a new trial.
Commonwealth v.
456, 460-61,
192,
(1922).
273
Atl.
Pa.
117
193
10 The Sixth Amendment
to the Constitution of
States
the United
guarantees
prosecutions,
“In
that:
all criminal
en-
accused shall
joy
right
speedy
public trial, by
impartial
jury.
to a
an
11
holding
Dowd,
appears
In
to the
addition
in Irvin v.
Witherspoon
Illinois,
text,
510,
in the
see
v.
518,
391 U.S.
S. Ct.
88
;
1770,
Louisiana,
466,
v.
470-72,
Turner
1775
379 U.S.
S.
85
546,
(1965) ;
Louisiana,
cf.
Ct.
Duncan v.
145,
548-49
391 U.S.
88
(1968).
S. Ct. 1444
12
Cir.),
(3d
denied,
2d
873,
248 F.
1
cert.
U.S.
355
S. Ct.
78
rehearing
121,
denied,
908,
(1957).
U.S.
355
552 a at the defend- juror state Pennsylvania courts, have been the son-in-law trial was discovered to
ant’s court concluded of a witness. prosecution rights violated the defendant’s juror the presence new ordered a the Fourteenth Amendment, under asserting These cases make it clear that trial. against at his trial was juror personally prejudiced had engaged, him as a result which the two fight federal consti- a violation of his alleging to an right impartial jury. tution the in through In determining appellant, whether his constitution of his waived federal counsel,14 action federal of waiver impartial to an standards jury, v. Commonwealth applied. See, e.g., Jones, must 447 Pa. 286 A. 2d Common 228, 230, 892, (1971) ; 893 v. Norman, wealth A. 2d 525 217, 523, 285 221, v. 395 89 S. Ct. Boykin Alabama, U.S. (1971); 238, 243, Noia, 1712 v. 372 83 1709, (1969); Fay 439, U.S. S. 391, 791, Ct. 849 Rice v. 822, (1963) ; Olson, 786, 324 U.S. S. Harris F. 65 Ct. v. 989, (1945) ; Brewer, Cir. United States ex rel. 166, (8th 1970) Snyder ; Mazurkiewicz, F. 2d 500, n.7 Cir. (3d 1969). The federal standards of waiver that control explicit. early case are As Johnson quite 304 U.S. 58 S. Ct. the United Zerbst, “ Supreme States ‘courts in- pointed out reasonable waiver’ dulge every presumption against Third case trial after denied Circuit ordered new we had Cavell, trial ex defendant a new in Commonwealth rel. Fletcher v. A. 2d Thus the Commonwealth’s re proposition appellant, decision for the liance on our that even if proved prejudiced-juror claim, he would not be entitled to re *12 totally lief, incorrect. is 14 disposition appellant’s prejudiced-juror Our claim makes unnecessary appellant’s argument consider us to it that a failure any questions on to ask voir dire defense constitutes in- of counsel. effective assistance
553
not
and ... we
rights
constitutional
‘dо
fundamental
fundamental
the loss
presume
acquiescence
”
1023.15 In
1962,
Id. at
58 S. Ct. at
rights.’
464,
United States
held that
Supreme
expressly
cases such as
one before
where the record is si
us,
lent on
constitu
whether or not waiver of a federal
tional
it is
occurred,
impermissible
place
of proving
burden
nonwaiver on defendants. The Court
stated in unequivocal
terms in
v.
369
Carnley
Cochran,
U.S.
The mandate of
v. Cochran
Carnley
one with
which this Court is unfamiliar.
we
Rather,
recog
nized our constitutional
obligation to follow it on a
multitude of occasions.
Commonwealth v.
See, e.g.,
447 Pa.
Jones,
286 A.
228, 231,
2d
893
892,
cases cited
Commonwealth
therein;
447 Pa.
Norman,
217, 222, 285 A. 2d 523, 526 (1971) ; Commonwealth v.
Bower,
Since the burden of proving noncompliance with Aljoe, cases such as this one where the record is si- lent, must be placed on the Commonwealth, and since the Commonwealth failed to meet that burden, we must reject Commоnwealth’s argument that appellant, 15 See ex Maroney, Commonwealth rel. Edowski v. (1966) ; United States ex rel. Linde v. Brier 2d ley, (3d 1970). F. Cir. *13 554 Ms Aljoe, lias waived to assert
pursuant claim. prejudiced-juror re- Superior the order of the Court is
Accordingly, versed and the order of the court hearing is vacated. The record is remanded to di- court with hearing rection allow counsel’s amendments to appellant’s se pro with direction to on hearing hold a the merits of appellant’s claim. prejudiced-juror
Concurring Dissenting Opinion by Mr. Jus- Pomeroy: tice
I concur that part of the Court’s opimon directs that the case be remanded to the court to allow аmendment of appellant’s se PCHA pro peti- I tion. As read the record of the post-conviction hear- held ing on May 29, 1970, however, the hearing judge considered and rejected the merits appellant’s preju- claim. I diced-juror Thus disagree that portion of the Court’s mandate which orders a hearing to be held on that issue.
Dissenting
Opinion
Ciiiep
Mr.
Justice
Jones
:
For a variety of
I
reasons,
judge
believe the PCHA
refused appellant’s amendments
properly
further
evidentiary
on the
prejudiced-juror
claim is unnecessary.
repeated
While
requests
post-conviction relief do not, standing
any
alone,
legal
it should be
significance,
noted that
stranger
judicial
process. United
ex
States
rel. Cornitcher v.
315 F.
Rundle,
Supp.
(E.D. Pa.
United
ex rel.
1970);
States
Cornitcher v.
Rundle,
F.
Supp.
(E.D.
1968), aff'd,
A defect in second, perhaps the ma- assumption is the the PCHA opinion jority judge prejudiced-juror on the claim relief due to denied either or waiver failure to ask ques- a Section dire which have indicated the may alleged tions on voir not bene- Although bias. we do have the juror’s alleged PCHA judge appel- fit of an from the due to opinion Rule comply Supreme lant’s failure to me that judge it decision the PCHA appears theory relief rests not on either but deny waiver merits. rather on the Of if this course, prejudiced- claim has been it juror rejected, considered and fully would be to remand for a further eviden- unnecessary tiary hearing.
If the PCHA on a judge waiver, relied Section afforded since we hearing unnecessary held that a PCHA when required the issues raised have bеen waived un- der Section Act. v. Williams, Com. E.g., 2d 127 The mere fact indeed ordered Admin- conducted, by the istrative of the Trial Judge Division the Philadel- Court of Common phia leads me to Pleas, inescapa- ble conclusion that the decision of judge was not bottomed on Section waiver. Nor do I be- *15 lieve that relief was denied due to a failure to question voir jurors the on dire. Nowhere in transcript the the PCHA is there any mention of the fact that defense counsel failed to the adequately question jurors on voir dire. Since this point never dis- cussed at the I do hearing, not believe the PCHA judge relied on this “waiver” theory.
In supрort my that the position PCHA judge ruled on the merits of the prejudiced-juror it claim, should be noted that after judge, PCHA argument concerning Section waiver, stated, “[l]et and see he go us what has to say.” Moreover, PCHA made no decision on judge appellant’s petition after appellant completed his until testimony. Lastly, interruptions appellant’s two testimony by
55? claim. indicate total judge rejection appellant’s I am of the that the PCHA opinion judge Accordingly, and ruled on the merits that further evidentiary unnecessary. be both hearing would futile II. The Eejected Amendments I Although recognize general principle should be I not believe freely amendments do allowed, claims that permit we should amendments raising have been are frivolous. finally litigated or patently first v. United to the claim under Bruton
Turning
Since
in his
appellant was
represented by
first
petition,
issue
be finally
would
Com.
litigated,
Wilson,
283 A.
2d
except
(1971),
the fact that the dismissal of the first petition predates
Bruton
is fully
retroactive,
Russell,
Roberts
violates the same issue multiple petitions raising ance of argument second majority’s litigation. piecemeal only was uncounselled is second indication that is no perspective: matter while there indication that counsel was there also no appointed, does the record counsel not Since appointed. had demonstrate that all counsel* first of this dis other actions cited paragraph I PCHA petition to think that the second sent, tend these To allow an amendment under was counselled. circumstances is unwise. most ad
In a
I do
a “tacit
manner,
similar
not believe
mission” amendment should be allowed. Notwithstand
v.
tacit
in Com.
our
admissions
ing
prohibition
227 A. 2d
Dravecz,
we
(1967),
indicated that
rationale of Bravees is inapplicable
cases
finalized
judgment
where
sentence was
before Miranda
Cody Appellants. Inc. et Industries, al., v. S.K.F. We notes May 29, obviously are re- inаccurate a number of spects, perhaps incomplete, compounding even thus the diffi- culty Court’s review of claims. hearing judge rejected petitioner’s request Since the counsel’s petitioner’s pro petition apparently any to amend se without knowl- edge by way of what claims would have been introduced amend- actually unnecessary ment, it is for us to consider the merits petitioner, appeal, the claims indicated that he would by way light However, have introduced amendment. dissenting opinion petitioner’s in the Chief Justice’s assertion “finally litigated” Bruton v. United Slates under been claim has meaning Hearing Act, of the Post Conviction within