Opinion
September 17, 1974.
November 14, 1974.
Criminal Law — Practice — Post Conviction Hearing Act — Petition dismissed without hearing or without appointing counsel for defendant — Request by defendant to have counsel appointed for him — Pa. R. Crim. P. 1503(a).
1. It was Held in this case that the court below erred in dismissing defendant's petition under the Post Conviction Hearing Act without a hearing and without appointing counsel to represent the defendant in the proceeding, where it appeared that the defendant was virtually without funds and he requested the court to appoint counsel to represent him.
2. Pa. R. Crim. P. 1503(a) states that "when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him."
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 809, Oct. T., 1974, from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 205, in case of Commonwealth of Pennsylvania v. Harold X. Smith. Order reversed with a procedendo.
Petition for post-conviction relief.
Order entered dismissing petition, order by CAIN, JR., J. Defendant appealed.
James J. Phelan, Jr., for appellant.
No appearance entered nor brief submitted for Commonwealth, appellee.
Submitted September 17, 1974.
The sole issue raised in this appeal is whether the court below acted properly in dismissing without a hearing appellant's petition under the Post Conviction Hearing Act without appointing counsel to represent him in the proceeding. We hold that it did not.
Act of Jan. 25, 1966, P.L. (1965) 1580, §§ 1 et seq., 19 P. S. § 1180-1 et seq. (Supp. 1974-75).
Pa. R. Crim. P. 1503(a) states that "when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him." In his petition the appellant represents that his only financial resources are his prison wages, that he has less than $30.00 in his prison account; and he requests the court to appoint an attorney to represent him.
Without reaching the merits of the petition and without reaching the question of whether the appellant should be granted an evidentiary hearing, we reverse the order of the court below and remand the record with instructions to appoint counsel to represent the appellant in a post-conviction proceeding at which the appellant's eligibility for an evidentiary hearing and/or other relief may be determined. Commonwealth v. Williams, 437 Pa. 526, 263 A.2d 127 (1970); Commonwealth v. Hoffman, 426 Pa. 226, 232 A.2d 623 (1967).
Order reversed with a procedendo.