No. 1300 April Term, 1978, Appeal from Order in the Court of Common Pleas of Butler County, Criminal Division, No. 051 of 1976.
J. Patrick Walsh, Butler, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Price, Hester and Montgomery, JJ.
[ 275 Pa. Super. Page 237]
Following trial by jury which commenced on April 12, 1976, in Butler County, appellant was convicted of rape. Post trial motions were denied, and appellant was sentenced to a term of imprisonment of 10 to 20 years. The facts of the case were brutal and barbaric. The pre-sentence report revealed that on June 9, 1970, appellant pled guilty, in Charleston, South Carolina, to charges of rape and assault with intent to ravish and was there sentenced to 15 years imprisonment. He was paroled after serving 5 years. The Butler County incident occurred approximately 6 months following the granting of appellant's parole.
[ 275 Pa. Super. Page 238]
An appeal was taken to this Court November 8, 1976 at No. 146 April, 1977. This Court affirmed. Petition for allowance of appeal to the Pennsylvania Supreme Court was denied March 27, 1978.
On June 30, 1977, during the period his appeal was pending before this Court, appellant filed an uncounseled Post Conviction Hearing Act Petition alleging, among other things, indigency and he requested the appointment of counsel. The lower court properly dismissed this petition, without an evidentiary hearing, due to the appeal then pending before this Court.
On July 3, 1978, appellant filed his second uncounseled P.C.H.A. petition wherein he alleged indigency and the ineffectiveness of trial counsel. He also requested the appointment of counsel. The court below dismissed this petition without an evidentiary hearing. In its opinion, the court correctly observed that the reasons advanced for Post Conviction Relief were "merely warmed over from his motion for new trial" and were "utterly without merit." Hence, this appeal. The court did appoint counsel to represent appellant in the within appeal.
We have reviewed the record in detail and agree that the allegations set forth in the petition are completely lacking in merit.
However, we are of the opinion that the summary dismissal of the petition without appointment of counsel was error.
The within situation is similar to that in Commonwealth v. Adams, 465 Pa. 389, 350 A.2d 820 (1976) ...