Commonwealth v. Van Allen

CERILLO, Judge,

concurring:

The majority has properly disposed of this appeal. However, because I disagree with the current state of the law, I am unable to join in the majority’s decision.

I agree with the trial court’s determination that appellant Craig Van Allen is ineligible for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. The trial court has properly concluded that the petition is frivolous and without support in the record, and under these circumstances I do not endorse the appointment of counsel. I recognize that this is Van Allen’s first PCRA petition. The majority has correctly construed Pennsylvania Rule of Criminal Procedure 1504, which requires the appointment of counsel for an indigent defendant on the first post-conviction relief petition.1 Nonetheless, I write separately to voice my disagreement with this requirement.

As the majority has stated, this case was directly appealed to this court and the judgment of sentence was affirmed. A petition for allowance of appeal was denied by the Penn*353sylvania Supreme Court. In his pro se PCRA petition, Van Allen raised two claims: (1) the trial court erred in its instructions to the jury; and (2) the testimony of the victim, Van Allen’s sister, was perjured. The jury instruction issue has been previously litigated, and the issue of the victim’s credibility has been waived. See 42 Pa.C.S. § 9543(a)(3), 9544(a), (b). In the alternative, Van Allen's claim that his sister’s testimony was perjured, without more, raises no basis for statutory relief. 42 Pa.C.S. § 9543.

It is patently clear that Van Allen is not entitled to collateral relief under the statute. Id. See also Commonwealth v. Williams, 389 Pa.Super. 489, 567 A.2d 709 (1989). Despite the frivolity of this appeal, the current state of the law requires appointment of counsel. See Pa.R.Crim.P. 1504(a) and comment. See also Commonwealth v. Kaufmann, 405 Pa.Super. 335, _, 592 A.2d 691, 694 (1991) (trial court’s authority to summarily dismiss a petition for post-conviction relief under Pa.R.Crim. 1507 must be read in conjunction with Pa.R.Crim.P. 1504, which provides for appointment of counsel for petitioner who is indigent and seeks initial review of petition for post-conviction relief); Commonwealth v. Perry, 386 Pa.Super. 534, 563 A.2d 511 (1989) (it is only on second and subsequent PCRA petitions that the new rules render the appointment of counsel discretionary with the trial court).

The former statute authorizing post-conviction relief, the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq., was partially repealed and substantially modified effective April 13, 1988. See 42 Pa.C.S. § 9541-9546. In the former statute, the legislature specifically provided that appointment of counsel was not required where the pauper petition was frivolous:

... If appointment of counsel is so requested and the court is of the opinion that a hearing on the petition is required, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel. The appointment of counsel shall not be required if the petitioner’s claim is patently frivolous and without a *354trace of support in the record as provided by section 9549 (relating to hearing on petition).

42 Pa.C.S. § 9551(b) (emphasis added), repealed, April 13, 1988, P.L. 336, no. 47, § 4. There is no comparable provision in the new statute, evidencing the legislature’s intent to abrogate the former section. See 1 Pa.C.S. § 1961. Section 1961 of the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq., provides that provisions of the former statute which are omitted from the reenactment “shall be deemed abrogated, and only the new or changed provisions shall be deemed to be the law from the effective date of the reenactment.” 1 Pa.C.S. § 1961. I remain dissatisfied, however, in my attempts to reconcile this construction with the new provisions enacted by the General Assembly in the Act of April 13, 1988. The new provisions clearly reflect a “legislative perception that courts had been too generous in entertaining claims for relief under the former statute” as reflected in the Commonwealth v. Brimage, 398 Pa.Super. 134, 140 n. 12, 580 A.2d 877, 880 n. 12 (1990). Cf. Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988) (recognizing the problems posed by repetitive post-conviction petitions); Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981); Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980).

Moreover, I discern no need to limit the trial court’s authority to summarily dismiss a frivolous petition by requiring appointed counsel to “separate the grain from the chaff” as a means to ensure effective appellate review. Perry, 386 Pa.Super. at 539 n. 2, 563 A.2d at 513 n. 2. I am confident that the practiced eye of the trial court can effectively perform this function.

. Pennsylvania Rule of Criminal Procedure 1504(a) provides:

When an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first motion for post-conviction collateral relief. Pa.R.Crim.P. 1504(a).