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submitted: May 15, 1989.


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.

Author: Hoffman

[ 387 Pa. Super. Page 40]

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continuing to proceed pro se, filed a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551 (repealed), on February 19, 1988.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 counsel is necessary whether the current petition is appellant's first or is one of a number of petitions.

Id., 357 Pa. Superior Ct. at 161, 515 A.2d at 610. Here, appellant proceeded pro se in both of his two previous petitions for post-conviction relief. A petitioner's right to counsel in post-conviction proceedings derives from the Pennsylvania Rules of Criminal Procedure. See Pa.R.Crim.P. 1503, 1504. See Commonwealth v. Finley, 497 Pa. 332, 334 n. 1, 440 A.2d 1183, 1184 n. 1 (1981). We note that the PCRA does not alter this right to counsel.*fn3 Here, because the prior post-conviction proceedings were uncounselled, the PCRA court should not have summarily dismissed the petition, but instead should have determined whether petitioner is indigent, and if so, whether his decision to proceed pro se in his initial petition was knowing and voluntary. See Morgan, supra. Accordingly, we must remand the case to the PCRA court. If the court below

[ 387 Pa. Super. Page 43]

    determines that petitioner is indigent and that he did not knowingly and voluntarily waive his right to counsel in the prior proceeding, then new counsel should be appointed to assist him. If, on the other hand, the court determines that petitioner did knowingly and voluntarily waive his right to counsel, then the issues raised in the instant petition would be deemed waived.

For the foregoing reasons, we reverse the order summarily dismissing petitioner's PCRA petition and remand to the court below for proceedings consistent with this opinion.

Order reversed, case remanded. Jurisdiction is relinquished.


Order reversed, case remanded. Jurisdiction is relinquished.

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