Criminal Law — Practice — PCHA proceeding — Uncontradicted testimony which, if believed, would establish right to relief — Death of hearing judge — Order entered by another judge denying relief on basis of review of post-conviction hearing transcript.
In this proceeding for post-conviction relief, in which it appeared that petitioner offered uncontradicted testimony at his post-conviction hearing which, if believed by the hearing court, would establish his right to relief; that the hearing judge took the case under advisement but died before rendering a decision; and that the case was then assigned to another judge, who entered an order denying relief to petitioner on the basis of his review of the post-conviction hearing transcript; it was Held that the procedure followed did not afford the court below an opportunity effectually to pass on the credibility of petitioner's hearing testimony and, therefore, the petition for allowance of appeal was granted, the order of the Superior Court vacated, and the record remanded to the court of common pleas for a new hearing on the petition.
OPINION PER CURIAM, March 15, 1972:
This case comes to us on petition for allowance of appeal. Petitioner contends that his post-conviction hearing petition, which alleged the invalidity of his guilty plea, was erroneously dismissed after a hearing in the Court of Common Pleas of Delaware County.
A review of the record discloses that petitioner offered uncontradicted testimony at his post-conviction hearing which, if believed by the hearing court, would establish his right to relief. The hearing judge took the case under advisement but died before rendering a decision. The case was then assigned to another judge who entered the order denying relief to petitioner on the basis of his review of the post-conviction hearing transcript.
We are of the view that the procedure followed in this case did not afford the court below an opportunity effectively to pass on the credibility of petitioner's hearing testimony — in effect, the only question presented for that court's determination. The petition for allowance of appeal is therefore granted, the order of the Superior Court is vacated, and the record is remanded to the Court of Common Pleas for a new hearing on the post-conviction petition.