filed: April 16, 1981.
COMMONWEALTH OF PENNSYLVANIA
SHERRIL HOBSON, APPELLANT
No. 1038 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Butler County on the 2nd day of August, 1979, Criminal Division C.A. No. 86 of 1976, Book 64, p. 86.
Philip P. Lope, Zelienople, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Spaeth, Johnson and Popovich, JJ.
[ 286 Pa. Super. Page 273]
This is an appeal from an order of the Court of Common Pleas, Butler County, summarily denying a petition for post-conviction relief filed by appellant. Because appellant did not receive the assistance of counsel in preparing his Post-Conviction Hearing Act*fn1 (PCHA) petition, we vacate the lower court's order and remand for proceedings consistent with this opinion.
Appellant was convicted of robbery by a jury.*fn2 Post-trial motions were denied*fn3 and appellant was sentenced to three to eight years imprisonment. A direct appeal was taken*fn4 to
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this Court and we affirmed by per curiam order. Commonwealth v. Hobson, 286 Pa. Super. 271, 428 A.2d 987 (1978). The Supreme Court denied allocatur on November 29, 1978.
On July 16, 1979, appellant filed a pro se PCHA petition*fn5 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 or the appointment of counsel on the grounds that the ineffectiveness issue was waived and the claims attendant thereto were no longer viable, having been finally litigated.*fn6 We do not agree.
To begin with, as to the question of waiver, our Supreme Court has held that a post-conviction petition cannot be summarily disposed of, without appointment of counsel, on such ground. Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969). The rationale being:
"The question of waiver is often a complicated legal one. There may be 'extraordinary circumstances' which will justify petitioner's failure to raise the issue. There may have been an intervening change in the law which will now entitle him to relief. And failure to raise an issue constitutes only a 'rebuttable presumption' of waiver. These are not the kinds of issues which we can expect an uncounseled petitioner to adequately deal with." (Citations omitted) Id., 436 Pa. at 45, 258 A.2d at 516-17.
Instantly, inasmuch as appellant alleged indigency and requested the appointment of counsel in the PCHA petition, the lower court erred in dismissing same without first assigning counsel to assist appellant. Commonwealth v. Alvarado, 488 Pa. 250, 412 A.2d 492 (1980). Given such omission, the normal procedure would be "to remand to the hearing
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court for a determination of whether an evidentiary hearing, and/or other relief, should be granted." Commonwealth v. Minnick, supra, 436 Pa. at 45, 258 A.2d at 517. However, before doing so, the Court thinks it in the interest of judicial economy, id., to address one of appellant's claims. "We take this course because it is clear on this record that [the] issue which petitioner . . . raise[s] on his direct appeal has already been finally determined against him." Id. To-wit, the Rule 1100 issue. The fact that such point has been presented in an unsuccessful appeal to this Court, as well as to the Pennsylvania Supreme Court in the form of a petition for allocatur, renders it finally litigated. 19 P.S. § 1180-4(a)(2) & (3) (Supp.1979-80); Commonwealth v. Gardner, 250 Pa. Super. 86, 378 A.2d 465 (1977). As for the second of appellant's claims, i. e., counsel's failure to subpoena alibi witnesses, the same result does not obtain.*fn7
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A review of the record reveals that neither this Court nor the Supreme Court considered, on its merits, whether appellant's counsel was ineffective for failing to subpoena named alibi witnesses. Accordingly, such issue, raised in appellant's post-conviction petition, has not been finally litigated.*fn8 See Commonwealth v. Alvarado, supra; Page 276} see generally Commonwealth v. Rhodes, 272 Pa. Super. 546, 556, 416 A.2d 1031, 1035-36 (1979). Moreover, even if arguendo the contention of counsel's ineffectiveness were deemed waived, the lower court would still be unable to dismiss summarily a pro se petition on such ground. Commonwealth v. Minnick, supra; see Commonwealth v. McClinton, 488 Pa. 598, 413 A.2d 386 (1980) (court erred in dismissing initial PCHA petition without a hearing where counsel was not appointed to assist petitioner in the proceedings); Commonwealth v. Miller, supra (summary dismissal of uncounseled petition without appointment of counsel by court is error); Commonwealth v. Cochran, 261 Pa. Super. 236, 396 A.2d 375 (1978) (court below erred in summarily dismissing petitioner's uncounseled petition, even if it were the third one filed); see also Commonwealth v. Schmidt, 436 Pa. 139, 259 A.2d 460 (1969) (summary disposition of a petition, without appointing 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."); cf. Commonwealth v. Mitchell, 266 Pa. Super. 45, 402 A.2d 1070 (1979) (issues waived by failure to raise them in prior PCHA petition filed by petitioner, where counsel was appointed and a hearing held).
Since we find that in the case sub judice the dismissal of the appellant's petition without the appointment of counsel was error, because the issue alleged therein was neither finally litigated nor waived, we remand to the lower court without reaching the merits of the issue. Commonwealth v. Miller, supra (appellate court reviewed the record and agreed with the lower court that the allegations in the petition were completely lacking in merit. Nevertheless, the
[ 286 Pa. Super. Page 277]
summary dismissal of the PCHA petition without appointment of counsel being error, the case was remanded). Such action is consistent with our prior case law. As was stated by our Supreme Court in Commonwealth v. Adams, 465 Pa. 389, 350 A.2d 820 (1976):
"Without reaching the merits of appellant's substantive claims, we hold that the summary dismissal of the petition in this case [, which dealt with guilty pleas from which no appeal was taken,] without appointment of counsel was error. Pa.R.Crim.P. 1503(a) suspending in part and superseding Section 12 of the Post-Conviction Hearing Act, places an affirmative duty on the hearing court to appoint counsel for an indigent petitioner before disposition of his petition. Commonwealth v. Schmidt [ supra ]; accord, Commonwealth v. Conner, 462 Pa. 282, 341 A.2d 79 (1975); Commonwealth v. Minnick, [ supra ]. 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)." (Footnote omitted) Id., 465 Pa. at 391, 350 A.2d at 821-22. Accord Commonwealth v. Miller, supra (direct appeal affirmed and allocatur denied prior to filing of uncounseled petition which was summarily denied); see also Commonwealth v. McClinton, supra; Commonwealth v. Alvarado, supra; Commonwealth v. Brown, 261 Pa. Super. 240, 396 A.2d 377 (1978); Commonwealth v. Irons, 254 Pa. Super. 251, 385 A.2d 1004 (1978); Commonwealth v. Bostic, 251 Pa. Super. 224, 380 A.2d 459 (1977); see generally Commonwealth v. Padgett, 485 Pa. 386, 402 A.2d 1016 (1979).
Further, in Commonwealth v. Brochu, 249 Pa. Super. 526, 378 A.2d 420, 422 (1977), our Court focused on the requirement that an indigent PCHA petitioner receive the assistance of a trained attorney. "'Pa.R.Crim.P. 1503(a) . . . places an affirmative duty on the hearing court to appoint
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counsel for an indigent petitioner before disposition of his petition.'" The reason behind the insistence upon the appointment of counsel was succinctly stated by us in Commonwealth v. Irons, supra, viz. :
"'"[C]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 . . . . 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 ground for complaint, investigation of the underlying facts, and more articulate statement of the claims are functions of an advocate that are inappropriate for a judge, or his staff." Commonwealth v. Mitchell, 427 Pa. 395, 397, 235 A.2d 148, 149 (1967).'" Id. 254 Pa. Super. at 254, 385 A.2d at 1006, quoting Commonwealth v. Brochu, supra.
In the case at bar, the lower court dismissed appellant's pro se petition without appointing counsel and without a hearing.*fn9 As a result, since appellant did allege indigency and did request the appointment of counsel, it was incumbent upon the hearing court to determine whether Hobson was indigent and, if so, whether counsel should have been appointed to assist him. Commonwealth v. Blair, 470 Pa. 598, 601, 369 A.2d 1153, 1154 (1977); Commonwealth v. Miller, supra.
Consequently, we have no choice but to vacate the order of the lower court and remand with instructions to afford appellant the opportunity to be represented by counsel in
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filing an amended PCHA petition and in any further proceedings thereon.
Order vacated and case remanded for proceedings consistent with this opinion.