decided: July 7, 1975.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
JOHN R. CONNER, APPELLANT
John R. Conner, in pro. per.
Marion E. MacIntyre, Deputy Dist. Atty., Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., dissents.
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OPINION OF THE COURT
On June 13, 1969, the appellant, John R. Conner, while represented by privately-retained counsel, was found guilty by a jury of voluntary manslaughter. Post trial
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motions were denied, and a sentence of six to twelve years imprisonment was imposed. A counseled appeal to this Court resulted in the affirmance of the judgment of sentence. Commonwealth v. Conner, 445 Pa. 36, 282 A.2d 23 (1971). Subsequent attempts to obtain federal habeas corpus relief proved unsuccessful.
On June 17, 1974, Conner filed an uncounseled petition in the trial court pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. Therein he alleged prejudicial remarks of the prosecuting attorney during trial operated to deny him his constitutionally guaranteed right to a fair trial. He contended that after the trial court properly refused to permit his wife to testify on behalf of the Commonwealth, the prosecuting attorney remarked in the presence of the jury and again in his closing argument, that the witness was not permitted to tell her story. The lower court, ruling the claim pertained to trial error challengeable only in a direct appeal, held that the issue was waived and denied the petition without a hearing. This appeal followed.
To be eligible for relief under the Post Conviction Hearing Act, the individual must prove, inter alia, that the error complained of in the prosecution proceedings has not been waived. See Post Conviction Hearing Act, § 3(d).*fn1 However, in Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969), this Court stated, "[w]hatever may be the merits on the question of waiver
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here, a hearing court cannot summarily dispose of a petition, without counsel, on the ground of waiver." [Emphasis supplied] Commonwealth v. Minnick, supra at 44, 258 A.2d at 516. The reason for this rule is "[t]here may be 'extraordinary circumstances' which will justify petitioner's failure to raise the issue" and "[t]hese are not the kinds of issues which we can expect an uncounseled petitioner to adequately deal with." Commonwealth v. Minnick, supra at 45, 258 A.2d at 516-517. See also Commonwealth v. Hill, 444 Pa. 75, 279 A.2d 170 (1971).
Instantly, although Conner alleged in his petition seeking post conviction relief that he was unable to pay the costs of the proceeding, he indicated he did not want an attorney to represent him and filed the petition pro se. Because of the importance which counsel has in advising petitioners seeking post conviction relief, we believe the trial court should have determined if Conner's decision to forego counsel was knowing and intelligent. The record, therefore, will be remanded to the trial court to determine in proper proceedings, whether Conner is indigent and, if so, if his decision to forego the assistance of counsel in these proceedings was knowing and intelligent.
If the court determines it was not, then counsel should be appointed to represent Conner,*fn2 and amendment to
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the petition freely permitted.*fn3 If, however, the court determines that Conner's decision to forego counsel was knowing and intelligent, it should expeditiously report this finding and the supporting facts to this Court.
It is so ordered.