If there is any merit beyond what now appears in petitioner's claim to a right to seek review by the Supreme Court of Pennsylvania the complaint should be heard by the State courts.
3. A careful examination of the papers discloses the possibility that petitioner may perhaps be claiming the deprivation of a constitutional right which he has not expressly stated. He concedes that he waived the right to counsel on his own behalf and his complaint is that the trial court failed to appoint an amicus curiae. In his petition
he states: 'Defendant elected to defend himself in the staunch belief that his innocence was Profound and his position unwaiving. Petitioner felt that this belief in his innocence was so overpowering, that only he was capable of presenting his case in a manner that would justify his innocence.'
Nevertheless, in a number of instances petitioner refers to his right to counsel in his 'appeal by right'. It may be inferred from the context that he refers to his motion for new trial. The opinion of the trial judge states that when the verdict was returned the defendant stated that he did not wish to seek a new trial; that when it became apparent that defendant had not entirely abandoned the thought of appealing the trial judge explained the practical necessity of filing a post-trial motion and suggested that he confer with the Public Defender's staff. For this purpose the trial judge entered an order enlarging from the usual four to seven days the time in which defendant might file a motion for new trial. Fourteen days later, no motion having been filed, defendant was brought up for sentence, and then belatedly sought to file a motion for new trial. Permission to do so was granted nunc pro tunc and a written motion was subsequently filed which the trial judge states was obviously prepared with the assistance of counsel. Approximately one month later defendant wrote to the trial judge withdrawing his motion for new trial and requesting that he be brought up for sentence. The defendant thereafter in open court executed a formal withdrawal of his motion for new trial and then was duly sentenced.
The petitioner has not disputed these facts set out in the trial judge's opinion attached to the District Attorney's answer, although he filed what is in effect a reply to that answer.
A motion for new trial is so intimately a part of the trial proceeding itself, standing as it does at the trial court level, that if an indigent defendant is entitled to counsel both at the trial and in the prosecution of an appeal, at least the first appeal, it is difficult to see why he is not entitled to counsel at the intermediate point of a motion for new trial. But the intimate relationship between the trial and post-trial motions in the trial court makes the knowing and intelligent refusal of the assistance of counsel at the trial carry with it the waiver of counsel for any post-trial motions, especially in the absence of any fresh demand by the defendant.
We therefore will deny the petition for habeas corpus. In doing so, however, we shall not foreclose the petitioner's right to resort to the State courts if there are any facts which would justify his application there with regard to his failure to receive notice of the decision of the Superior Court and the absence of counsel on his motion for new trial. The circumstances surrounding these aspects of the case call peculiarly for their consideration in the first instance by the tribunal in which they occurred. All the facts are lodged in the records of the State courts and the details of what happened both at the trial level and in the Superior Court proceeding could most conveniently be examined there. Comity and practical considerations alike require that any inquiry into these circumstances on habeas corpus should be sought and exhausted initially in the State Courts.
And now, July 3, 1963, the petition of Rudolph E. Boyance for a writ of habeas corpus is denied without prejudice.