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COMMONWEALTH PENNSYLVANIA v. THOMAS HIGH (11/03/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 3, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS HIGH, APPELLANT

No. 877 October Term 1977, Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County, at No. 833 January Term, 1975.

COUNSEL

George B. Ditter and Calvin S. Drayer, Jr., Assistant Public Defenders, Norristown, for appellant.

Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 260 Pa. Super. Page 121]

This is an appeal from a lower court order dismissing appellant's petition for relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580, et seq., 19 P.S. 1180-1 et seq. (Supp.1970). The only question stated in appellant's brief is whether the lower court should have appointed counsel to assist appellant with his PCHA petition.

It is clear that the lower court should have appointed counsel. See Commonwealth v. Triplett, 467 Pa. 510, 359 A.2d 392 (1976), quoting and applying Commonwealth v. Adams, 465 Pa. 389, 350 A.2d 820 (1976), which held that 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)." 465 Pa. at 391, 350 A.2d at 821.

The order of the lower court is reversed and the case remanded with instructions to the lower court to determine whether appellant is indigent, and if he is, to appoint counsel to assist him with his PCHA petition.

19781103

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