Opinion
September 16, 1969.
Criminal Law — Counsel for defendant — Post-conviction proceeding — Preparation of allocatur petition — Mere attachment of backer to petition prepared by prisoner — Representation in role of advocate.
1. Counsel for an indigent petitioner for post-conviction relief is required to prepare an allocatur petition. [302]
2. Merely attaching a backer to a petition prepared by the prisoner and submitting it to the Supreme Court cannot be considered "representation" by counsel. [302]
3. Adequate representation on appeal requires representation in the role of an advocate. [302]
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Petition for leave to appeal, No. 961, Oct. T., 1968, from order of Superior Court, Oct. T., 1968, No. 961, affirming order of Criminal Courts of Delaware County, March T., 1967, No. 487, in case of Commonwealth v. Harold Stancell. Record remanded.
Same case in Superior Court: 213 Pa. Super. 761.
Petition for post-conviction relief. Before CATANIA, J.
Order entered dismissing petition. Petitioner appealed to the Superior Court which affirmed per curiam. Petition for allocatur filed with Supreme Court.
Mervyn R. Turk, Assistant Public Defender, for petitioner.
Ralph B. D'Iorio and Anna Iwachiw Vadino, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Petitioner's PCHA petition was denied after hearing, and he appealed to the Superior Court which affirmed per curiam. A petition for allocatur followed.
The entire petition reads as follows: "1. On November 1, 1968, . . . the Superior Court of Pennsylvania filed a Per Curiam Order affirming the action of the Lower Court.
"2. The Superior Court failed to consider all the facts presented on behalf of the petitioner in rendering its decision. The Superior Court failed to properly apply the law to the facts that were established.
"Notice of this petition has been served on the District Attorney of Delaware County."
The petition is typed, and is signed by the prisoner. The only indication that appointed counsel existed is the fact that the backer has the Public Defender's name on it. This Court requires counsel to prepare allocatur petitions, see Commonwealth v. Hickox, 433 Pa. 144, 249 A.2d 777 (1969). Merely attaching a backer to a petition prepared by the prisoner, and submitting it to this Court, cannot be considered "representation" by counsel, cf. Commonwealth v. Villano, 435 Pa. 273, 256 A.2d 468 (1969) (xeroxing prisoner's petition is inadequate). The Supreme Court of the United States, in a case considering whether an indigent had adequate representation on appeal, set out the standard which must guide us: "[R]epresentation in the role of an advocate is required." Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975 (1958). By merely attaching a backer, the Public Defender does not fulfill this role.
The record is remanded to the hearing court so that counsel can file a proper petition for allocatur.