Opinion
Submitted May 23, 1977.
Decided March 23, 1978.
Appeal from the Court of Common Pleas, Dauphin County, Warren G. Morgan, J.
John R. Conner, in pro per.
LeRoy S. Zimmerman, Dist. Atty., Marion E. MacIntyre, Second Asst. Dist. Atty., for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.
OPINION OF THE COURT
On July 7, 1973, this Court, upon appellant's appeal from dismissal of his Post Conviction Hearing Act petition, remanded the case to the PCHA court to determine whether appellant was indigent and, if so, whether his election to forego assistance of counsel in the PCHA proceedings was knowing and intelligent. Commonwealth v. Conner, 462 Pa. 278, 341 A.2d 79 (1975). The PCHA court determined appellant was indigent and knowingly and intelligently waived his right to counsel. From this decision, appellant now appeals.
We hear this appeal pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965), 1580, § 11, 19 P. S. § 1180-11 (Supp. 1977), and the Appellate Court Jurisdiction Act, Act of July 31, 1970, art. II, § 202(1), 17 Pa.C.S.A. § 211.202 (1) (Supp. 1977).
The record does not support the conclusion that appellant's waiver of the constitutionally protected right to counsel was knowing and intelligent. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Accordingly, we vacate the order of the PCHA court denying appellant's petition for post-conviction relief and remand the case to that court to appoint counsel other than a public defender to represent appellant and to allow amendment of appellant's pro se PCHA petition.
Order vacated and case remanded for proceedings consistent with this opinion.