Barry H. Denker, Philadelphia, and David E. Auerbach, Assistant Public Defender, Media, for appellant.
Thomas M. Regan and Joseph J. Dougherty, Assistant District Attorneys, and Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 226]
Appellant contends that the lower court erred in denying his Post Conviction Hearing Act*fn1 petition without a hearing. Because appellant did not receive the assistance of counsel in preparing his PCHA petition, we vacate the lower court's order and remand for proceedings consistent with this opinion.
On September 10, 1976, appellant filed a pro se petition for a writ of habeas corpus in the Delaware County Court of Common Pleas. In this petition, appellant alleged that his state convictions on charges of possessing and delivering a controlled substance*fn2 contravened his constitutional right not to be placed in double jeopardy because he had previously pleaded guilty to similar charges in a federal district court. According to appellant, both federal and state charges emanated from a joint federal-state investigation and derived from information supplied by the same informant. The charges alleged transactions which transpired within eight days of each other. Given the common factual matrix underlying the federal and state charges, appellant maintained that Pennsylvania's interest in prosecuting appellant for drug transactions had already been satisfied by the prior federal conviction. In this petition appellant also asked leave to proceed in forma pauperis. On November 8, 1976, the lower court appointed the Delaware County Public Defender's Office to represent appellant in connection with his habeas corpus petition. On November 19, 1976, the lower court ordered a hearing on appellant's petition, and on November 29, 1976, the court issued a writ of habeas corpus ad prosequendum directing that appellant be produced at a hearing on December 1, 1976. On December 1, 1976, the lower court entered the following order: "And Now, the first day of December, 1976, after presentation in open
[ 253 Pa. Super. Page 227]
Court, the Petitioner Donald J. King's petition for writ of habeas corpus filed September 10, 1976, be and the same is hereby denied." The record contains no transcription of the December 1, 1976 proceedings.
On January 12, 1977, appellant filed a pro se PCHA petition in the Delaware County Court of Common Pleas. Appellant reiterated his contention that he had been twice placed in jeopardy by successive federal and state convictions stemming from a joint federal-state investigation and based on leads supplied by the same informant. Appellant conceded that our Court and the Supreme Court had denied his direct appeals, but he claimed that he had not discovered the facts underlying his double jeopardy contention until after his appeals had been denied. Appellant also stated that his prior petition for a writ of habeas corpus had been denied on December 1, 1976, but he alleged that he had not received a hearing on this petition.*fn3 Finally, in his petition, appellant stated that he had not attached any affidavits or supporting evidence to his PCHA petition because: "I have given all relevant documents to this PCHA petition to my court appointed attorney Mr. Allen I. Rosenberg, . . . whom I've been unable to contact. And who has told me that he had filed the post-conviction petition on two (2) different times (Dec. 7 & Dec. 22, 1976). That he had not so filed."*fn4 Appellant's court-appointed attorney did not participate in any way in the proceedings on this PCHA petition. On January 18, 1977, the lower court entered the following order: "This petition is denied. The issues raised herein were raised in Petitioner's petition for writ of habeas corpus filed September 10, 1976, and heard and disposed of by order of the December 1, 1976. Hence, the issues presented have been litigated, and decided that double jeopardy did not attach to two separate offenses."
[ 253 Pa. Super. Page 228]
On January 31, 1977, appellant filed a pro se petition for reconsideration of his PCHA petition and a motion for the removal of the judge who had denied his habeas corpus and PCHA petitions. Appellant recounted the procedural history of his attempts to secure post-conviction relief on his double jeopardy claim. He alleged that on December 1, 1976, he received a very brief hearing on his habeas corpus petition. At that time, his court appointed Public Defender requested a continuance because he was not prepared to argue appellant's claim. The court denied this request and then dismissed appellant's habeas corpus petition because it was not the proper form of legal action. The court suggested that a PCHA petition would be the proper avenue for relief and stated that a Delaware County Public Defender would be assigned to help appellant prepare this petition. Pursuant to this directive, Public Defender Allen I. Rosenberg was appointed to handle appellant's case.*fn5 Appellant also alleged that the judge who had considered his petitions for post-conviction relief had demonstrated a deeply rooted prejudicial attitude and should therefore be replaced. On February 2, 1977, appellant filed an appeal from the lower court's order denying his PCHA petition. On February 11, 1977, the presiding Judge of the Delaware County Court of Common Pleas dismissed appellant's petition for reconsideration of his PCHA petition and for removal of the judge who had denied his previous petitions.
In Commonwealth v. Blair, 470 Pa. 598, 599, 369 A.2d 1153, 1154 (1977), our Supreme Court recently summarized the applicable law for determining when a court may dismiss a PCHA petition without ...