Commonwealth v. Luckett , 1997 Pa. Super. LEXIS 3200 ( 1997 )

HESTER, Judge:

Eddie L. Luckett appeals the January 13, 1997 denial of his petition for PCRA relief. We are constrained to reverse and remand for the appointment of counsel.

On December 23, 1994, appellant was sentenced to forty-five to ninety months imprisonment following his conviction by a jury of possession and delivery of a controlled substance. On direct appeal, we summarized the evidence presented at appellant’s trial:

On April 20, 1993, Officers Kevin Mitchell and Michael Keilty investigated reports of drug activity by conducting surveillance on the comers of Taylor Avenue and Linden Street in Scranton. The officers were approached by an individual who offered to sell them cocaine. Because neither officer was prepared to make a buy on that day, they told the individual they would return the next day. The individual was later identified as Merle Simmons.

The next day, Officer Mitchell and another Scranton police officer, Michael Carroll, returned to the area. This time they carried five marked twenty dollar bills. These officers were approached by the same individual who had offered to sell cocaine the previous day. They pulled the car to a curb on the opposite side of the street in order to be directly under a street lamp. The officers arranged to buy two bags of cocaine for fifty dollars. During this transaction, appellant approached the officers from the opposite side of the car. Appellant also offered to sell them cocaine. Officer Mitchell agreed to purchase three bags of cocaine for fifty dollars. Appellant then went into 1304 Linden Street and returned with three bags of a white powdery substance.

The officers completed the transactions, left the scene, and met with Officer Leonard Ash in order to test the powder. It was identified as cocaine. At this point, Officers Mitchell and Carroll returned to the scene at approximately 10:15 p.m. which was about an hour to an hour and a half after the transaction had occurred. Upon seeing appellant in front of 1304 Linden Street, Officer Mitchell conducted a protective pat down. He asked for identification and appellant stated his name was Eddie Luckett.

The officers then left the scene to prepare an affidavit of probable cause in order to obtain an arrest warrant. Unsure of the true identification of appellant, Officer Mitchell used the name John Doe, a/k/a Mark. He testified he used the name “Mark” because he believed appellant went by this name on the street. (N.T. November 16, 1993 at 33). Officer Mitchell, accompanied by Officer Keilty, returned to the scene in order to serve the arrest warrant. On or about 9:30 p.m., the arrest warrant was executed against appellant.

Superior Court Memorandum, 8/16/95, at 1-2.

Following his convictions, appellant filed a pro se appeal, raising eight allegations of error. We rejected his arguments and affirmed. On January 9, 1997, appellant filed his first petition for post-conviction relief. He raised numerous allegations of ineffective assistance of counsel and leveled accusations of prosecutorial misconduct. Four days later, the PCRA court denied the petition summarily, stating that

the defendant having filed a pro se motion for post conviction collateral relief on January 9, 1997, charging his counsel with ineffectiveness, and it appearing that the Superior Court in a decision filed on August 16, 1995 had determined that the defendant’s counsel was not ineffective, it is hereby ordered that the defendant’s said motion for post conviction collateral relief is denied.

Order of court, 1/13/97, at 1. This appeal followed.

' Appellant contends that summary dismissal was improper and that he was entitled to the assistance of counsel in this proceeding. Appellant’s brief at 6.¹ We are constrained to agree.

Initially, we note that the trial court bases its dismissal on the theory that the effectiveness of counsel was previously litigated. However, appellant has raised different allegations of trial counsel’s ineffectiveness than those raised on direct appeal. For example, in his PCRA petition, he alleges that trial counsel had a conflict of interest and was ineffective for presenting a witness at trial. These claims were not addressed on direct appeal. Coneededly, most of the issues raised in the petition either have been previously litigated or are not cognizable in the PCRA setting.

Nonetheless, we must agree with appellant’s contention that he was entitled to the assistance of counsel. We have held that regardless of the merits of a defendant’s claims, he is entitled to appointment of counsel for his first PCRA petition if he is indigent. Commonwealth v. Peterson, 453 Pa.Super. 271, 683 A.2d 908 (1996); see also Commonwealth v. Lindsey, 455 Pa.Super. 228, 687 A.2d 1144 (1996); Pa.R.Crim.P. 1504(a). An indigent defendant is entitled automatically to the appointment of counsel for his initial petition for relief under the PCRA. Hence, we are constrained to reverse and remand for the appointment of counsel.

Order reversed. Case remanded for appointment of counsel. Jurisdiction relinquished.

CIRILLO, President Judge Emeritus, files concurring opinion.

1 . Appellant's indigency is established by the record.