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COMMONWEALTH PENNSYLVANIA v. CALVIN JOHNSON (03/13/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 13, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
CALVIN JOHNSON, APPELLANT

No. 1086 April Term, 1979, Appeal from the Order entered on October 31, 1979, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at CC7603090, denying Post Conviction Relief

COUNSEL

John H. Corbett, Jr., Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, Johnson and Popovich, JJ.

Author: Per Curiam

[ 285 Pa. Super. Page 159]

This is an appeal from an order dismissing a pro se petition filed under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. ยง 1180-1 et seq. The trial court concluded that appellant's claim was frivolous and was without a trace of support in the record, and the court dismissed the petition without the requested appointment

[ 285 Pa. Super. Page 160]

    of counsel. Because the trial court erred when it dismissed appellant's petition without appointing counsel, we must remand the matter to the trial court.

Under the provisions of Rule 1503(a) of the Pennsylvania Rules of Criminal Procedure, the trial court may not dismiss summarily a petition filed by an indigent without the appointment of counsel, if counsel is requested, unless the same issues have been adjudicated in a previous counseled petition which was determined adversely to the petitioner or where the petitioner has waived the right to the assistance of counsel knowingly.*fn1 See Commonwealth v. Blair, 470 Pa. 598, 369 A.2d 1153 (1977) and Commonwealth v. Adams, 465 Pa. 389, 350 A.2d 820 (1976). Accord Commonwealth v. Sinwell, 259 Pa. Super. 544, 393 A.2d 959 (1978). Additionally, cases in Pennsylvania have adopted a strict construction of the language of Rule 1503(a). Id.

Because appellant requested the appointment of counsel, and because appellant has not filed a previous counseled post-conviction hearing petition, counsel should have been appointed.*fn2 See Commonwealth v. Sinwell, supra. Accordingly, the matter is remanded to the trial court for the appointment of counsel, and upon request, appellant is entitled to amend his petition. See Commonwealth v. Sinwell, supra.

In view of our disposition of this appeal, we need not address appellant's alternative argument that the prosecution's failure to provide appellant with a trial transcript for his appeal constituted reversible error.

The order of the trial court denying post-conviction relief is vacated and the matter is remanded to the trial court for the appointment of counsel. Jurisdiction is transferred to the trial court.


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