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May 10, 1985


Appeal from the PCHA in the Court of Common Pleas of Dauphin County, Criminal Nos. 644, 645, 646 C.D. 1974

Before: Spaeth, P.j., Wickersham, Brosky, Cirillo, Beck, Popovich and Hester, JJ.


Three questions are presented by this appeal: First, has appellant preserved any issue for appellate review? Second, if he has, what disposition should we make of such issue, or issues? And third, should we remand for the appointment for new counsel?

On the first question: Judge CIRILLO's opinion may be read as holding that appellant has preserved no issue for appellate review, for the reason that, according to Judge CIRILLO, the allegations in appellant's second PCHA petition are inadequate. This conclusion ignores the fact that when appellant filed the petition he was without counsel, and its error is demonstrated by Judge POPOVICH at pages 4 through 9 of his opinion. See in particular the first paragraph of footnote 2 on page 6.*fn1

On the second question: Three issues have been preserved for appellate review: the rubber stamp issue; the Riggins issue; and the allocution issue. Counsel could not have been ineffective in failing to raise the first two issues, for they are without merit. However, Judge CIRILLO's dictum to the contrary (if it is dictum ; see note 1 supra), the allocution issue does have merit, again as demonstrated by Judge POPOVICH, at pages 9 through 14 of his opinion. I therefore agree with Judge POPOVICH that the judgment of sentence should be vacated and the case remanded so that appellant may exercise his right of allocution.

On the third question: Judge POPOVICH states that "the assignment of counsel for appellant on appeal cures" the trial court's error in dismissing appellant's pro se petition without hearing and without appointing counsel. Judge CIRILLO, in dictum, agrees. I do not.

Rule 1504 of the Pennsylvania Rules of Criminal Procedure provides that the appointment of counsel in PCHA proceedings is required unless "a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon." Pa.R.Crim.P. 1504. See Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981); Commonwealth v. Blair, 470 Pa. 598, 369 A.2d 1153 (1977). See also Commonwealth v. Nole, Pa. Super. , 466 A.2d 703, aff'd Pa. , A.2d (filed 12/28/84)); Commonwealth v. Garrison, 303 Pa. Super. 555, 450 A.2d 65 (1982). Here, the issues appellant raised in his second PCHA petition, in particular, his right to allocution, differ from the issues that he raised, and that were determined adversely to him in his first petition. Accordingly, the only situation in which Rule 1504 permits a trial court to dismiss a petition without appointing counsel did not arise.

Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983), on which Judge POPOVICH relies, see his opinion at 3, is not in point. In Lohr, counsel had advised the petitioner on two occasions that there was no basis for filing an amended PCHA petition (counsel having prepared a petition raising one issue and the petitioner desiring to add other issues to the petition). On his appeal to the Supreme Court the petitioner filed a pro se petition, discarding the one prepared by counsel. The question for the Court was whether the case should be remanded to permit counsel to comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), by filing an advocate's brief and a petition to withdraw. The Court concluded that since it was examining all of the petitioner's claims, remand would be duplicative and therefore was not required. The Court's decision thus to consider additional issues after counsel had determined that the PCHA petition was adequate affords no support for Judge POPOVICH's and Judge CIRILLO's assumption, or assertion, that there are no additional issues that appellant, if he had the assistance of counsel, might raise.

It is, moreover, quite inaccurate to state that the review this court conducts now will remedy the failure of the trial court to appoint counsel. The review this court conducts now extends only to appellant's pro se claims. Neither Judge POPOVICH nor Judge CIRILLO claims to have reviewed the entire record for any meritorious claims appellant might raise, if advised by appointed counsel. Cf. Commonwealth v. McClendon, supra (after requirements of Anders have been met, reviewing court must make an independent determination of merits of appeal). Judge POPOVICH's statement that we may consider appellant's PCHA petition now "since there is no indication of record that appellant was hindered from raising any issue he wished," see his op. at 5, is no excuse for not following Rule 1504. No authority is cited for the statement; I know of none; and settled authority is directly contrary. Both the Supreme Court and this court have repeatedly stated the basis for the requirement of Rule 1504 that an indigent petitioner must have counsel appointed for him in proceedings before the PCHA court:

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 prisoners 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, 427 Pa. 395, 397, 235 A.2d 148, 149 (1967).

See also Commonwealth v. Finley, 497 Pa. 332, 335, 440 A.2d 1182, 1184 (1981) ("Counsel for a PCHA petitioner can more ably explore legal grounds for complaint, investigate underlying facts, articulate claims for relief and promote efficient administration of justice."); Commonwealth v. Holland, 496 Pa. 514, 516, 437 A.2d 1159, 1160 (1981) ("The appointment of counsel in post-conviction proceedings sharpens presentation of the issues and promotes the administration of justice.") Commonwealth v. Sangricco, 490 Pa. 126, 132, 415 A.2d 65, 68 (1980) ("[n]othing in PCHA practice is more settled than the rule that a person seeking post-conviction relief is entitled to the assistance of counsel."). In Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975), the Court, affirming Commonwealth v. Mitchell, supra, stated: "Clearly this rule 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 representation." Commonwealth v. Fiero, supra at 413, 341 A.2d at 450. See also Commonwealth v. Via, 483 Pa. 363, 396 A.2d 1212 (1979) (when counsel is appointed but amended petition is not filed, proceedings are considered uncounselled); Commonwealth v. Davis, Pa. Super. , 476 A.2d 1351 (1984) (same; per WICKERSHAM, J., joined by POPOVICH, J.); Commonwealth v. Ollie, 304 Pa. Super. 505, 450 A.2d 1026 (1982) (same). Thus the question is not whether appellant "was hindered from raising any issue he wished" but whether he was "represented by counsel," Pa.R.Crim.P. 1504, and whether counsel had "the opportunity and in fact [did] discharge the responsibilities required by his representation," Commonwealth v. Fiero, supra.

Judge CIRILLO chastises me for "search[ing] for perfect justice." See his opinion at 14. "Prisoners", he says, "who are in fact guilty of the crimes of which they stand convicted must learn to accept the consequences of their guilt. . ." Id. at 19. These comments seem to me to beg the question. I doubt that following rule 1504 will enable us to realize perfect justice. I submit, however, that when a rule squarely controls a case -- as Rule 1504 controls this case -- we should follow the rule. As for prisoners accepting the consequences of their guilt: If counsel was ineffective, how do we know that the prisoner was guilty? Besides, are not even the guilty entitled to effective counsel?

The judgment of sentence should be vacated and the case remanded so that appellant may exercise his right to allocution, and also, so that the trial court may pursuant to Rule 1504 appoint counsel to represent appellant and ...

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