Appeal from the Order entered December 5, 1988 in the Court of Common Pleas of Pike County, Criminal Division, at No. 71 of 1986.
Henry Davis, appellant, in pro. per.
Charles F. Lieberman, Dist. Atty., Milford, for Com., appellee.
Cavanaugh, Popovich and Hoffman, JJ.
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This is an appeal from an order below denying appellant's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends
[ 387 Pa. Super. Page 41]
that the lower court erred in denying his petition without a hearing and without the appointment of counsel. The Commonwealth concedes that the case should be remanded for a hearing on whether appellant is entitled to counsel. For the reasons that follow, we reverse the order below and remand for proceedings consistent with this opinion.
After a trial by jury, on September 8, 1986, appellant, who proceeded pro se, was convicted of aggravated assault and recklessly endangering another person.*fn1 Post-trial motions were filed and denied. On October 23, 1986, appellant was sentenced to serve a term of imprisonment of not less than three years nor more than ten years. On November 20, 1986, appellant filed an appeal to this Court. The appeal was quashed on July 6, 1987, for failure to comply with the Pennsylvania Rules of Appellate Procedure. Appellant, continuing to proceed pro se, filed a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551 (repealed), on February 19, 1988. The petition was summarily denied. Appellant appealed the denial of his petition to this Court, which dismissed his appeal as untimely by order dated June 15, 1988. On September 7, 1988, appellant filed a second post-conviction petition, which petition was also summarily denied. Appellant then filed a third post-conviction petition on December 1, 1988.*fn2 The lower court summarily denied the petition without appointing counsel or holding a hearing. This appeal is from the denial of that petition. Appellant at all times up to and including the instant appeal has proceeded pro se.
In Commonwealth v. Morgan, 357 Pa. Super. 157, 161, 515 A.2d 609, 610 (1986), this court, faced with a similar situation, held:
[ 387 Pa. Super. Page 42]
A pro se PCHA petition may not be summarily dismissed unless a previous petition involving the same issue or issues has been finally determined adversely to the petitioner in a counseled proceeding or one in which he or she voluntarily waived the right to assistance of counsel. See Pa.R.Crim.P. 1503, 1504.
The proper procedure is for the trial judge to make a determination as to the indigency of the petitioner, and, if the petitioner is found to be indigent, the trial judge should appoint counsel to assist in the preparation of an amended PCHA petition. If counsel is appointed, but does nothing, that proceeding must be deemed to have been uncounselled. Reversal for failure to appoint ...