concurring:
I use this opportunity to reiterate my sentiment on the current state of the law and procedure employed for the disposition of an uncounseled defendant’s patently frivolous first PCRA petition. In Commonwealth v. Van Allen, 409 Pa.Super. 348, 597 A.2d 1237 (1991)(Cirillo, J., concurring), I wrote separately to express my belief that the trial court properly dismissed the uncounseled defendant’s first PCRA petition where the petition raised claims that were either previously litigated or waived. I believe that under such circumstances, regardless of whether the petitioner is asking for collateral relief for the first or a subsequent time, our rules should not make it mandatory that counsel be appointed to represent such petitioner.
I am thoroughly cognizant of Rule of Criminal Procedure 1504 which requires the appointment of counsel for an indigent defendant on his or her first post-conviction relief petition, as well as the policy behind affording first-time petitioners counsel in all cases. See Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981)(counsel for a PCHA petitioner allows legal grounds for a complaint to be more ably explored and promotes the efficient administration of justice).
Our court has consistently ruled that Rule 1504 be read eoextensively with Pa.R.Crim.P. 1507. To that end, a first time indigent PCRA petitioner may not have his or her claims dismissed summarily, without the aid of counsel, merely because these claims are clearly frivolous. See Commonwealth v. Kaufmann, 405 Pa.Super. 335, 592 A.2d 691 (1991) (trial court’s authority to summarily dismiss a petition for post-conviction relief under Pa.R.Crim.P. 1507 must be construed in conjunction with Pa.R.Crim.P. 1504); cf. Pa.R.Crim. 1507 (a motion for post-conviction collateral relief may be granted without a hearing when the motion and answer show that there is no genuine issue concerning any material fact and no purpose would be served by any further proceeding).
In those cases that have reversed a PCRA court’s summary dismissal of a first-time PCRA petition where the petitioner was un-eounseled and indigent, the defendant had put the court on notice that he or she requested the aid of counsel because of his or her indigent status and inability to otherwise procure counsel. Rule of Criminal Procedure 1504 states, in part:
(a) When an unrepresented defendant satisfies [to the court] that the defendant is unable to afford or to otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first motion for post-conviction collateral relief.
There have been no cases interpreting Rule 1504’s language “satisfies to the court.” This phrase could logically be interpreted to place an affirmative duty on the PCRA petitioner to bring it to the court’s attention, whether orally or by motion or petition, that he or she is unable to afford or procure counsel and that the present petition is the first he or she is bringing for collateral relief. The comment following the Rule, however, uses lan*1017guage that may be construed to place the burden of investigating the indigent status of a first-time petitioner on the PCRA court. See Pa.R.Crim.P. 1504, comment (“Consistent with Pennsylvania post-conviction practice under former Rules 1503 and 1504, it is intended that counsel be appointed in every case in which a defendant has filed a motion for post-conviction collateral relief for the first time and is unable to afford counsel or otherwise procure counsel.”).
I highlight this language due to the facts of the present case. Here, as in Van Allen, the trial court determined that the ineffectiveness claims Luckett raised in his PCRA petition had already been determined by our court on his direct appeal from the judgment of sentence. Unlike the many Rule 1504 cases rendered by our court and our supreme court where first-time indigent petitioners were outright denied the appointment of PCRA counsel, there is no evidence in the record that Luckett ever filed a request to have PCRA counsel appointed or informed the PCRA court of his indigent status. See Commonwealth v. Lindsey, 455 Pa.Super. 228, 687 A.2d 1144 (1996); Commonwealth v. Peterson, 453 Pa.Super. 271, 683 A.2d 908 (1996); Commonwealth v. Kaufmann, 405 Pa.Super. 335, 592 A.2d 691 (1991). Furthermore, the order dismissing Luekett’s pro se petition does not deny him the right to counsel. Even more suspect is the fact that in his direct appeal, Luckett claimed that his Sixth Amendment rights were violated because the trial court denied him the opportunity to proceed pro se post-trial; instead, the court appointed him counsel. This claim is diametrically opposed to the claim he now makes on appeal from the denial of his uncounseled petition.
While it is clear from the Rule, case law, and the Comment proceeding Rule 1504 that a PCRA court is to strictly follow the practice that counsel be appointed when the conditions of Rule 1504 are met, there is no guidance or support to ascertain if the court or the defendant must make the first move to have counsel appointed and thus carry out the spirit of Rule 1504. Cf. Pa.R.Crim.P. 1507 (“the judge should thoroughly review the motion, the answer if any, and all other relevant information that is included in the record” to determine whether summary dismissal of the petition is appropriate).
Although the legislature and the Supreme Court Rules Committee are the proper bodies to address the issue raised in this concurrence, in light of the purpose behind Rule 1504,1 agree with the majority that this case should be reversed and remanded for the appointment of counsel. The record is replete with multiple applications filed by Luckett to proceed informa pauperis. Furthermore, these petitions were granted by the trial court. Under such circumstances it seems reasonable to assume that, after a proper and thorough review of the record, the PCRA court would well have been on notice of the petitioner’s indigent status prior to deciding his petition.