decided: March 31, 1977.
COMMONWEALTH OF PENNSYLVANIA
FRANK LARK, APPELLANT
Appeal from the Order dated June 24, 1975, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 733, 734 July Term, 1972. No. 1758 October Term, 1975.
Joseph C. Spaulding, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 247 Pa. Super. Page 186]
On October 12, 1972, appellant Frank Lark was convicted by a court sitting without a jury of Aggravated Robbery. He was sentenced to imprisonment for not less than eighteen months nor more than five years. On appeal, this court affirmed the judgment of sentence. Commonwealth v. Lark, 228 Pa. Super. 825, 316 A.2d 629 (1974). The Supreme Court of Pennsylvania denied allocatur. 228 Pa. Super. lvii.
On May 20, 1975, appellant filed a pro se petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580, § 1 (19 P.S. § 1180-1 (Supp.1976-77)) et seq. Appellant's petition alleged, inter alia, that his pre-trial lineup had been conducted in the absence of counsel in violation of his sixth amendment right to effective assistance of counsel. The petition also alleged that appellant was indigent and requested the appointment of counsel.
The lower court responded by dismissing the petition without a hearing and without determining whether appellant was indigent and entitled to the appointment of counsel. This was in violation of well settled Pennsylvania law.*fn1 In Commonwealth v. Adams, 465 Pa. 389, 391, 350 A.2d 820, 821-22 (1976), the supreme court held:
"Summary disposition of a petition, without appointment of counsel, is permitted only 'when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he . . . was represented by counsel in proceedings thereon.' Pa.R.Crim.P. 1504. See Commonwealth v. Smith, 459 Pa. 583, 330 A.2d 851 (1975); Commonwealth v. Haynes, 234 Pa. Super. 556, 340 A.2d 462 (1975).
[ 247 Pa. Super. Page 187]
Since Adams in his petition, alleged that he was indigent and requested appointment of counsel, the hearing court should have determined if Adams were, in fact, indigent and if so, counsel should have been appointed to assist him."
See also Commonwealth v. Triplett, 467 Pa. 510, 359 A.2d 392 (1976).
The lower court, citing Commonwealth v. Tunnell, 463 Pa. 462, 345 A.2d 611 (1975),*fn2 deems the issue waived by reason of section 4(b) of the PCHA Act of January 25, 1966, P.L. (1965) 1580 (19 P.S. § 1180-4(b)). The theory of waiver or finally litigated cannot be predicated upon an uncounseled proceeding. Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975); Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969).
Appellant has not previously filed a petition raising the issue he seeks to raise now. Therefore, this case must be remanded to determine whether Lark's request for the appointment of counsel should be granted and to allow any requested amendments to the pending petition.
It is so ordered.