Opinion
December 18, 1969.
Criminal Law — Counsel for defendant — Appeal — Petition for allocatur — Sufficiency — Required role of counsel as an advocate.
In this case, it was Held that a petition for allocatur, prepared by counsel (and which failed to set forth the questions involved and the reasons in favor of granting the petition), did not accord with counsel's required role as an advocate.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Petition for leave to appeal, No. 419-A Miscellaneous Docket, from order of Superior Court, No. 20, March T., 1969, affirming order of Court of Oyer and Terminer of Dauphin County, Sept. T., 1962, Nos. 21 and 22, in case of Commonwealth v. Richard Gene Hoerner. Case remanded.
Same case in Superior Court: 214 Pa. Super. 719.
Petition for post-conviction relief. Before SHELLEY, J.
Order entered dismissing petition. Petitioner appealed to the Superior Court which affirmed the order of the court below. Petition for allocatur filed in Supreme Court.
Richard D. Walker, Public Defender, for petitioner.
Jerome T. Foerster, Assistant District Attorney, for Commonwealth, appellee.
The petition for allocatur, prepared by counsel, reads as follows:
"Your petitioner respectfully requests the allowance of an appeal . . . and in support of said petition respectfully represents as follows:
"1. Your petitioner is Richard Gene Hoerner . . . .
"2. Your petitioner respectfully requests your Honorable Court to permit him to appeal from the Order of the Superior Court . . . .
"3. Richard Gene Hoerner filed a Petition for Allowance to appeal from the Order of the Superior Court of Pennsylvania on March 3, 1969. On May 13, 1969, your Honorable Court directed Counsel appointed to represent Richard Gene Hoerner to proceed in accordance with the views of your Honorable Court expressed in Com. v. Taylor, 433 Pa. 334 (1969)."
This petition clearly does not accord with counsel's required role as an advocate, see Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975 (1958). Accordingly, this case must be remanded so that counsel may prepare a proper petition. See Commonwealth v. Trowery, 435 Pa. 586, 258 A.2d 499 (1969); Commonwealth v. Stein, 436 Pa. 328, 257 A.2d 848 (1969); Commonwealth v. Stancell, 435 Pa. 301, 256 A.2d 798 (1969); Pa. Supreme Ct. Rule 69 (petitions for allowance of appeal must set forth particularly the questions involved and the reasons in favor of granting the petition).