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COMMONWEALTH v. SEYMOUR (11/28/69)

decided: November 28, 1969.

COMMONWEALTH
v.
SEYMOUR, PETITIONER



Petition for leave to appeal from order of Superior Court, No. 21, Oct. T., 1969, affirming order of Court of Oyer and Terminer of Lackawanna County, Nov. T., 1964, No. 13, in case of Commonwealth v. Howard R. Seymour.

COUNSEL

Joseph T. McGraw, Public Defender, for petitioner.

Robert W. Munley, Assistant District Attorney, and Joseph J. Cimino, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ.

Author: Per Curiam

[ 436 Pa. Page 160]

Following his plea of guilty to charges of statutory rape and abusing a woman child, petitioner was sentenced to three to six years in prison on December 8. 1964, by the Court of Quarter Sessions of Lackawanna County. At the time of his plea and at his sentencing, petitioner was represented by court-appointed counsel.

[ 436 Pa. Page 161]

In July, 1968, petitioner filed a Post Conviction Hearing Act petition alleging, inter alia, the denial of his right to be advised of his right to appeal and the denial of his right to the assistance of competent counsel at the time of his plea. Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180. The court below, at petitioner's request, appointed counsel to assist him with his petition and directed counsel to investigate the allegations of the petition and file a report to assist the court in determining the necessity of an evidentiary hearing.

Counsel complied with this request and reported that "there is no basis for this petition, and it should be dismissed without a hearing." On the basis of this report and its own review of the record, the court dismissed the petition. No appeal was taken from that action.

We must initially disapprove the course of conduct pursued in this PCHA proceeding. The statutory provision that indigent petitioners be represented by counsel in such proceedings does not contemplate that counsel should act as an adjunct to the court in its screening of post-conviction petitions. Rather it contemplates the appointment of an independent attorney who will represent petitioner in a full and complete sense. In these circumstances we hold that petitioner was not represented by counsel in any meaningful sense on his first PCHA petition. It cannot be concluded, therefore, that any issues raised in the first PCHA petition were finally litigated by the adverse decision of the lower court, and the failure of petitioner to appeal. See 19 P.S. § 1180-4; Commonwealth v. Kizer, 428 Pa. 99, 236 A.2d 515 (1967).

Twenty days after the denial of his first petition, petitioner filed a second PCHA petition, alleging the same grounds for relief mentioned above. Petitioner again requested the appointment of counsel; this request

[ 436 Pa. Page 162]

    was denied, and the petition was dismissed without hearing by the court below on the theory that it was nothing but a repetition of the original petition. After a per curiam affirmance of this dismissal by the Superior Court, the present petition for allowance of appeal was brought. The issue raised ...


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