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COMMONWEALTH v. GALLOWAY (03/21/68)

decided: March 21, 1968.

COMMONWEALTH
v.
GALLOWAY, APPELLANT



Appeal from order of Court of Quarter Sessions of Lancaster County, March T., 1964, No. 69, in case of Commonwealth of Pennsylvania v. Kenneth Augustus Galloway.

COUNSEL

Howard Rubin, and May, Grove, Stork & Rubin, for appellant.

Henry J. Rutherford, Assistant District Attorney, and Wilson Bucher, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 212 Pa. Super. Page 155]

Kenneth Augustus Galloway, the appellant, was tried and convicted of sodomy and solicitation to commit sodomy on January 12, 1965. He was sentenced to serve a term of not less than two and one-half nor more than five years.

On May 11, 1967, appellant petitioned the Court of Quarter Sessions of Lancaster County for relief under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. 1180-1 et seq. (Supp. 1966). The court appointed counsel to represent appellant in the proceedings below pursuant to § 12 of the Act. The court then granted a rule upon the Commonwealth to show cause why a hearing should not be granted.

The Commonwealth filed an answer to appellant's petition alleging that none of appellant's allegations were meritorious. On August 21, 1967, the court dismissed appellant's petition without a hearing.

Appellant contends that the court below erred in summarily dismissing his petition for post-conviction relief without allowing counsel an opportunity to present written or oral argument in support of the petition.

[ 212 Pa. Super. Page 156]

This question involves the interpretation and application of § 12 of the Post Conviction Hearing Act. Section 12 provides in pertinent part: "If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel."

Appellant argues that the Act permits counsel the opportunity to appear before the lower court to explain why an evidentiary hearing is warranted. He avers that counsel should be able to amplify and explicate the alleged constitutional errors checked off by the petitioner on the forms provided him.*fn1 This proceeding would permit counsel to clarify the legal issues presented by the facts alleged in the petition. Without such a proceeding, appellant submits that the right to counsel is an empty statutory right. We disagree.

Section 5 of the Act provides for the method of filing a petition for post-conviction relief. That section provides in part that: "Any person who desires to obtain relief under this act may initiate a post-conviction proceeding by filing a petition . . . A petition shall be in the following forms. . . ." This section describes in considerable detail the nature and content of the petition. Basically, the petition includes all facts which support the alleged error upon ...


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