Opinion
Submitted May 27, 1971.
December 20, 1971.
Criminal Law — Practice — PCHA proceeding — Defendant permitted to file post-trial motions as though timely filed — Dismissal of motions — Employment of concepts of Post Conviction Hearing Act by the lower court — Matter treated as a direct appeal — Issues presented to appellate court by pro se habeas corpus petitions not finally litigated.
1. In this case, in which it appeared that defendant filed a PCHA petition; that the court below permitted defendant to file post-trial motions as though timely filed; and that defendant's motion for a new trial was dismissed, and defendant appealed; it was Held that the matter had to be treated as a direct appeal, and that the court below erred in employing the concepts of the Post Conviction Hearing Act.
2. Issues previously presented to the Supreme Court by pro se habeas corpus petitions are not finally litigated. [428]
Before BELL, C. J., JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
Appeal, No. 38 May T., 1971, from order of Court of Common Pleas of Dauphin County, Sept. T., 1953, No. 2, in case of Commonwealth of Pennsylvania v. Billy Joe Loveday. Order vacated and matter remanded.
Petition for post conviction relief.
Petitioner granted leave to file post-trial motions, nunc pro tunc. Motion by defendant for new trial dismissed, opinion by KREIDER, P. J. Petitioner appealed.
Thomas C. Zerbe, Jr., Assistant Public Defender, for appellant.
Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Although the court below correctly permitted the appellant to file post-trial motions as though timely filed, Com. v. Robinson, 442 Pa. 512, 515 n. 2, 276 A.2d 537, 539 n. 2 (1971), we are confused by the use of the term "previously litigated" and the extensive quotation from our opinion in Com. ex rel. Loveday v. Myers, 422 Pa. 483, 222 A.2d 725 (1966). If the court below employed the concepts of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P. S. § 1180-1 et seq., (Supp. 1971), it was error since this matter must be treated as a direct appeal. Indeed, issues previously presented to this Court by pro se habeas corpus petitions are not finally litigated. Com. v. Wilson, 444 Pa. 433, 283 A.2d 78 (1971). Accordingly, the order is vacated and the matter is remanded for a speedy disposition unencumbered by any apparent reference to PCHA concepts.