No. 233 March Term, 1977, Appeal from the Order of Court of the Court of Common Pleas of Dauphin County, denying the Post Conviction Hearing Act Petition filed to No. 376 Criminal Division 1976.
Frederic G. Antoun, Jr., and Marilyn C. Zilli, Assistant Public Defenders, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a concurring and dissenting opinion.
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Appellant contends that the lower court erred in denying his Post Conviction Hearing Act*fn1 petition without a hearing. We agree and, therefore, vacate the order of the lower court and remand for a hearing.
On January 21, 1976, appellant was arrested and charged with criminal trespass*fn2 and burglary.*fn3 On May 25, 1976, appellant waived a jury trial, and the lower court found him guilty of criminal trespass. At the conclusion of the trial, and after a discussion with his counsel, appellant waived his right to appeal and chose to be sentenced immediately. Thus, appellant neither filed post-verdict motions nor appealed from the judgment of sentence. The court sentenced appellant to a term of imprisonment of six months to five years and to pay restitution of $12.
On August 17, 1976, appellant filed a pro se PCHA petition in which he raised several claims, including the ineffective assistance of trial counsel. On August 24, 1976, the lower court appointed new counsel*fn4 to represent appellant in his PCHA petition. Counsel did not file an amended petition or a brief to support appellant's contentions, or argue before the lower court. On September 27, 1976, the court dismissed appellant's petition without a hearing. This appeal followed.
Appellant contends that his PCHA petition was uncounselled and, therefore, we should reverse and remand for a hearing. In Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967), the Supreme Court held that § 12 of the PCHA imposes a mandatory requirement upon the trial
[ 249 Pa. Super. Page 438]
court to appoint counsel for an indigent, post-conviction petitioner. It further stated:
"We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner's claims. Counsel's ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967): 'It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se. . . . Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statement of claims are functions of an advocate that are inappropriate for a judge, or his staff.'" 427 Pa. at 397, 235 A.2d at 149.
Subsequently, in Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975), the Court reaffirmed the holding in Mitchell and ...