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decided: December 21, 1978.


No. 280 March Term 1977, Appeal from the Order of the Court of Common Pleas of Dauphin County, Pa., denying Post Conviction Hearing Act Relief at No. 2242 Criminal Div. 1971.


Bruce D. Foreman, Harrisburg, for appellant.

LeRoy S. Zimmerman, District Attorney, Harrisburg, for Com., appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 261 Pa. Super. Page 226]

Appellant contends that the lower court erred in denying his Post Conviction Hearing Act petition without a hearing.*fn1

On October 9, 1973, appellant was tried by a jury and convicted of aggravated robbery. The court imposed a sentence of 8-20 years imprisonment. On appeal we affirmed. Commonwealth v. Byrd, 228 Pa. Super. 879, 322 A.2d 684 (1974). Both at trial and on appeal appellant was represented by the same public defender, who was a member of the staff of the Dauphin County Public Defender's Office.

On September 8, 1976, appellant filed a pro se PCHA petition, alleging ineffectiveness of counsel and requesting that new counsel be appointed to represent him on his PCHA petition. On September 10 the court appointed an attorney from the Dauphin County Public Defender's Office to represent appellant on his petition. On September 13 the Commonwealth answered the petition, and on September 17 the court denied it without a hearing. New counsel, not

[ 261 Pa. Super. Page 227]

    connected with the Public Defender's Office, was appointed to represent appellant on this appeal.

A PCHA petition "should not be dismissed where the petitioner is indigent and has requested counsel, without affording him representation in that proceeding." Commonwealth v. Fiero, 462 Pa. 409, 412, 341 A.2d 448, 450 (1975). See Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976); Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967); Commonwealth v. Prowell, 249 Pa. Super. 435, 378 A.2d 374 (1977). In Commonwealth v. Mitchell, supra, the Supreme Court explained the reason for this rule:

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, ยง 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." Commonwealth v. Mitchell, supra, 427 Pa. at 397, 235 A.2d at 148, 149.

[ 261 Pa. Super. Page 228]

Here the lower court found that appellant was indigent and did appoint an attorney to represent him on his PCHA petition. Mere appointment, however, is not enough. As the Supreme Court stated in Commonwealth v. Fiero, supra, "this rule [requiring appointment] is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his Page 228} representation." 427 Pa. at 413, 341 A.2d at 450 (emphasis added).

In Commonwealth v. Prowell, supra, where appointed counsel had not filed an amended petition or a supplementary brief or presented oral argument, this court held that the appellant's pro se PCHA proceeding "was in fact uncounselled." Similarly here there was no amended petition, supplementary brief, or oral argument; nor was there any indication that appointed counsel certified to the court that he would proceed on the original petition. See Commonwealth v. Prowell, supra. Moreover, the short period of time between the appointment of counsel and the court's disposition of the matter -- less than seven days -- demonstrates that appointed counsel was not afforded an adequate opportunity to discharge his duty. See Commonwealth v. Fiero, supra. Accordingly, in the circumstances appellant's PCHA proceeding was "in fact uncounselled." See Commonwealth v. Prowell, supra. It was therefore error to dismiss the petition without a hearing.*fn2

The order of the lower court is vacated and the matter is remanded for a hearing at which appellant should be represented

[ 261 Pa. Super. Page 229]

    by appointed counsel, who shall take whatever action is required to represent appellant effectively.

HESTER, Judge, dissenting:

I dissent. I would affirm the judgment and sentence of the court below.

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