Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1965, No. 184, in case of Commonwealth ex rel. John Cunningham v. Robert W. Duggan, District Attorney of Allegheny County, and James F. Maroney, Superintendent.
David B. Fawcett, Jr., with him Dickie, McCamey & Chilcote, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellees.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
In 1963, appellant was tried and convicted of murder in the second degree. Trial was by jury and throughout the proceedings appellant was represented by court appointed counsel. A post trial motion for a new trial was denied and appellant was sentenced to a term of imprisonment of 10 to 20 years. No appeal was taken.
On October 8, 1964, appellant filed a petition for a writ of habeas corpus in the court below challenging his conviction. Counsel was appointed and a hearing on the petition was held. On September 2, 1965, an order was entered denying the petition. From this order appellant appeals.
In his petition for habeas corpus, appellant raises a number of contentions. However, in light of the disposition we make, we find it necessary to consider but one.
Appellant contends that following his conviction and the denial of his motion for a new trial, he requested trial counsel to perfect an appeal to this Court, but that counsel failed to act upon such request within the time allowed by law. By reason of counsel's failure to perfect an appeal, appellant contends that he was deprived of his constitutional right to the assistance of counsel on appeal as set forth in the decision of the Supreme Court of the United States in Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), and the decisions of this Court in Commonwealth ex rel. Branam v. Myers, 420 Pa. 77, 216 A.2d 89 (1966), Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966), and Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).
It is settled law since the decision in Douglas v. California, supra, that an indigent defendant is constitutionally entitled to the assistance of counsel on an appeal as of right. Moreover, it is equally settled that a necessary incident of that right is the assistance of counsel in the task of perfecting such an appeal. Commonwealth ex rel. Branam v. Myers, supra; Commonwealth ex rel. Robinson v. Myers, supra; Commonwealth ex rel. Stevens v. Myers, supra.
Appellant, having been convicted of murder, had an absolute right of appeal to this Court. Act of February 15, 1870, P. L. 15, § 1, 19 P.S. § 1186. However, the failure of appellant to take such an appeal within the time allowed by law will preclude the assertion of such right unless the failure to do so resulted from an unconstitutional deprivation of the assistance of counsel. Commonwealth ex rel. Robinson v. Myers, supra; Commonwealth ex rel. Stevens v. Myers, supra.
In denying appellant's claim for relief, the court below found that following the denial of appellant's motion for a new trial, counsel visited him at the Allegheny County Jail at which time the matter of an appeal was discussed; that counsel advised appellant that unless new evidence was uncovered there was no basis for an appeal; and that "relator accepted this advice and decided not to appeal. . . ." The court proceeded to find that appellant had acquiesced in the recommendation of counsel that no appeal be ...