No. 213 January Term, 1979, Appeal from the Order of the Commonwealth Court of Pennsylvania at 141 Miscellaneous Docket No. 2 denying a Petition for Review of an action by the Pennsylvania Board of Probation and Parole revoking Appellant's parole at Indictment No. 3287, April Term, 1971, of Allegheny County.
Purcell Bronson in pro. per.
Robert A. Greevy, Asst. Atty. Gen., Dauphin County, for appellee.
John W. Packel, Chief, Appeals Div., Defender Ass'n of Philadelphia, amicus curiae.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Larsen, J., concurs in the result.
The underlying issue in this appeal is the right of an indigent prisoner, confined as a result of a parole violation
determination by the Pennsylvania Board of Probation and Parole, to have counsel provided to assist him in his attempt to challenge the validity of that determination. The inadequate and confusing record before us provides the strongest possible argument for the need of counsel in such proceedings. It would be virtually impossible from the information provided by this record to not only assess the merits of appellant's complaints relating to his recommitment but even to identify, with any degree of certainty, the precise nature of appellant's complaints.*fn1 The appellee argues that there is no right to appointed counsel because the proceeding was civil in nature and did not involve an attack on the convictions or the sentence.
The pertinent facts for a determination as to the right of counsel are as follows: Bronson was sentenced on November 15, 1973 by the Court of Common Pleas, Allegheny County, to serve a two to four year sentence charging assault by prisoner. While on parole from the original sentence, appellant was sentenced in September 1977 on new charges, arising in Delaware County, to a term of imprisonment of two to four years. After a proceeding before the Board, during which it is disputed whether appellant was represented by counsel, his parole was revoked and he was recommitted to serve the balance of his original sentence. Appellant filed with the Commonwealth Court contesting the recommitment order. Bronson v. Brd. of Probation and Parole, 38 Pa. Commw. 294, 392 A.2d 916 (1978). The Commonwealth Court, treating the question as relating only to the 120 day rule, see U.S. ex rel. Burgess v. Lindsey, 395 F.Supp. 404 (E.D.Pa.1975) held that the revocation hearing was timely and granted the Board's motion for summary judgment. Appellant was not represented in this proceeding. On December 29, 1978, appellant again applied to the Commonwealth Court for relief and this request was also denied. In this action, appellant also proceeded without the benefit of counsel. An appeal from the second denial of relief by the Commonwealth Court has been made to this Court.*fn2 Because of the confusing state of the record and appellant's request for the appointment of counsel to assist him, we remanded the question of appellant's entitlement to court appointed counsel to the Commonwealth Court for their consideration. In response the Commonwealth Court concluded that there was no constitutional right to the appointment of counsel nor was there a need for counsel,
apart from constitutional considerations, in this particular instance.*fn3 The matter is now before us for decision.*fn4
The Commonwealth Court treated Bronson's "Petition for Review" as a civil action in the nature of a complaint in mandamus brought within the court's original jurisdiction pursuant to 42 Pa.C.S.A. 761. Thus to determine the soundness of the Commonwealth Court's result, it is appropriate to begin with examining the ...