No. 265 March Term, 1977, Appeal from the Order of Court of the Court of Common Pleas of Dauphin County dated August 5, 1975 at Nos. 133, 1496 Criminal Division 1973, denying appellant's Post Conviction Hearing Act Petition.
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ.
[ 254 Pa. Super. Page 252]
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.
Harrisburg police arrested appellant and charged him with aggravated assault and battery*fn2 and assault with intent to kill*fn3 based upon two separate incidents; the first occurred on May 19, 1972, and the second on May 5, 1973. Both attacks were upon the same victim and the cases were consolidated for trial. Following a trial on October 16, 1973, at which a Dauphin County Public Defender represented appellant, the jury returned a verdict of guilty on both indictments. After the denial of post-verdict motions, appellant filed a direct appeal to our Court. While the appeal was pending, appellant filed a pro se PCHA petition. On September 23, 1974, our Court filed an opinion which affirmed appellant's judgment of sentence. Commonwealth v. Irons, 230 Pa. Super. 56, 326 A.2d 488 (1974). On November
[ 254 Pa. Super. Page 25326]
, 1974, appellant filed his second pro se PCHA petition and, on February 20, 1975, the court denied the petition without appointment of counsel and without a hearing. Subsequently, on April 28, 1975, appellant filed his third pro se PCHA petition together with a supplemental brief. In the petition appellant raised the following issues: denial of the effective assistance of counsel, unconstitutional suppression of evidence by the state, unconstitutional use by the state of perjured testimony, violation of state and federal constitutional rights, and after-discovered exculpatory evidence. On May 8, 1975, the lower court appointed a member of the Dauphin County Public Defender's office to represent appellant. The public defender did not take any action on appellant's behalf in the lower court and on August 5, 1975, the court denied appellant's third PCHA petition without a hearing. The court reasoned that all issues raised had either been fully litigated or waived. On November 17, 1976, our Court granted appellant leave to appeal nunc pro tunc from the denial of PCHA relief. Appellant is now represented by new counsel who is not a member of the Dauphin County Public Defender's office.
Appellant contends that the lower court erred in denying his PCHA petition. In Commonwealth v. Blair, 470 Pa. 598, 369 A.2d 1153, 1154 (1977), our Supreme Court summarized the applicable law for determining when a court may dismiss a PCHA petition without affording an indigent prisoner the assistance of counsel.
"Under the terms of Rule 1503(a) [Pennsylvania Rules of Criminal Procedure, 19 P.S.Appendix], the Court is mandated to provide counsel, upon request, in Post Conviction proceedings once petitioner satisfies the Court of his financial inability to obtain counsel. The only exception to this mandatory requirement is set forth in Rule 1504 which provides:
"'Appointment of counsel shall not be necessary and petitions may be disposed of ...