COMMONWEALTH оf Pennsylvania v. Frederick PROWELL, Appellant.
Superior Court of Pennsylvania.
Decided Oct. 6, 1977.
378 A.2d 374
Submitted March 14, 1977.
Appellant contends that the lower court erred when it granted the Commonwealth‘s petition to extend the period in which to try the appellant pursuant to Rule 1100(c), Pa.R.Crim.P.,
Case remanded for completion of the record.
WATKINS, President Judge, and PRICE and VAN der VOORT, JJ., dissent.
Frederic G. Antoun, Jr., and Marilyn C. Zilli, Assistant Public Defenders, Harrisburg, for aрpellant.
Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Com., appellee.
Appellant contends that the lower court erred in denying his Post Conviction Hearing Act1 petition without a hearing. We agree and, therefore, vacate the order of the lower court and remand for a hearing.
On January 21, 1976, appellant was arrested and charged with criminal trespass2 and burglary.3 On May 25, 1976, appellant waived а jury trial, and the lower court found him guilty of criminal trespass. At the conclusion of the trial, and after a discussion with his counsel, appellant waived his right to appeal and chose to be sentenced immediately. Thus, appellant neither filed post-verdict motions nor appealed from the judgment of sentence. The court sentenced appellant to a term of imprisonment of six months to five years and to pay restitution of $12.
On August 17, 1976, appellant filed a pro se PCHA petition in which he raised several сlaims, including the ineffective assistance of trial counsel. On August 24, 1976, the lower court appointed new counsel4 to represent appellant in his PCHA petitiоn. Counsel did not file an amended petition or a brief to support appellant‘s contentions, or argue before the lower court. On September 27, 1976, thе court dismissed appellant‘s petition without a hearing. This appeal followed.
Appellant contends that his PCHA petition was uncounselled and, therefоre, we should reverse and remand for a hearing. In Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967), the Supreme Court held that § 12 of the PCHA imposes a mandatory requirement upon the trial
“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 prisoner‘s 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 fоr Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967): ‘It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substаntive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se. . . . Exploratiоn of the legal grounds for complaint, investigation of the underlying facts, and more articulate statement of claims are functions of an advocate thаt are inappropriate for a judge, or his staff.‘” 427 Pa. at 397, 235 A.2d at 149.
Subsequently, in Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975), the Court reaffirmed the holding in Mitchell and interpreted the above quoted language:
“Clearly this rule is not limited to the mere naming of an attorney to represent an accused, but also envisiоns that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.
“A review of this recоrd reveals that the first petition was filed pro se and that after counsel‘s appointment there was no attempt to file an amended petition. Further, the petition was dismissed without an evidentiary hearing and the record is barren of any indication of oral argument before that decision was rendered or that counsel filed a brief to set forth the legal principles upon which his client relied. These facts compel the conclusion that the proceeding wаs in fact uncounseled. Under such circumstances the mandate of section 12 of the Post-Conviction Hearing Act as interpreted
by this Court has not been met. See, Commonwealth v. Mitchell, supra; Pa.R.Crim.P. 1503 ,1504 .”
Finally, in Commonwealth v. Scott, 469 Pa. 332, 365 A.2d 853 (filed November 24, 1976), the Supreme Court again reaffirmed the principles of Mitchell and Fiero. The Court held that it could not rеach the merits of appellant‘s claims because his post-conviction proceedings were uncounselled. See also, Commonwealth v. Smith, 459 Pa. 583, 330 A.2d 851 (1975); Commonwealth v. Younger, 245 Pa.Super. 298, 369 A.2d 412 (1976).
In the instant case, appellant filed a pro se petition and cоunsel was appointed to represent him. Counsel failed to file an amended petition or a supporting brief or to present oral argument to the court.5 This case is squarely controlled by Commonwealth v. Fiero, supra, which presented almost identical facts. We find that appellant‘s PCHA proceeding was, in fact, uncounselled.
Counsel appointed to represent appellant at trial and at the PCHA hearing are both members of the Dauphin County Public Defender‘s Office. Because of the inherent conflict of loyalties to one‘s client on the one hand and to one‘s associates on the other, we cannot assume that PCHA counsel will fully explore the potential inadequacies of trial counsel‘s representation. Under similar circumstances we have required that appointed counsel at the new PCHA hearing nоt be associated with the public defender‘s office. Commonwealth v. Crowther, 240 Pa.Super. 212, 361 A.2d 862 (1976). See also, Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974). Thus, on remand appellant may not be represented by a member of the Dauphin County Public Defendеr‘s Office.6
VAN der VOORT, J., files a concurring and dissenting opiniоn.
VAN der VOORT, Judge, concurring and dissenting:
While I concur in the majority‘s remanding of this case to the lower court for hearing on appellant‘s P.C.H.A. petition, I must dissent to our prohibition of representаtion by a second member of the public defender‘s staff. I believe that the lower court fulfilled the mandate of the Act in appointing counsel, and I would not еxtend the Crowther and Via precept of counsel not on staff as a public defender to this situation, where a P.C.H.A. petition is begun and there is no immediate appreсiation of a situation where second, P.C.H.A. counsel will be less than thorough out of a reluctance to find fault with his “brother” public defender. If such a conflict should аrise at the hearing, the appropriate remedy can then be taken. But I am reluctant to join the majority of our Court in which I perceive to be a blanket rule of appointing P.C.H.A. counsel different from the public defender staff when one of its number represented the appellant theretofore. Without а clear showing that second counsel‘s hands would be tied in the performance of his duty by being placed in a position of having to allege errors by a member of his own “firm“, I would not strip the office of public defender of this function and support a rule which surely removes all P.C.H.A. representation from it in cases where it hаs served as trial counsel.