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COMMONWEALTH EX REL. NEWSOME v. MYERS (06/24/66)

decided: June 24, 1966.

COMMONWEALTH EX REL. NEWSOME, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas of Dauphin County, March T., 1965, No. 341, in case of Commonwealth ex rel. Vernon L. Newsome v. David N. Myers, Superintendent.

COUNSEL

Vernon L. Newsome, appellant, in propria persona.

Leslie B. Handler, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 422 Pa. Page 241]

In 1963, appellant was convicted in a trial by jury of murder in the second degree and sentenced to a term of imprisonment of 10 to 20 years. Throughout the proceedings, appellant, an indigent, was represented by court appointed counsel. No post trial motions were filed or appeal taken from the judgment of conviction or sentence.

[ 422 Pa. Page 242]

Subsequently, appellant filed a petition for a writ of habeas corpus in the court below challenging his conviction, inter alia, on the ground that he was denied his constitutional right to the assistance of counsel on appeal.*fn1 The petition was dismissed and this appeal followed. For the reasons hereinafter stated, we are of the view that the order of the court below must be vacated and the record remanded for a hearing in light of the decisions of this Court in Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A.2d 811 (1966); Commonwealth ex rel. Branam v. Myers, 420 Pa. 77, 216 A.2d 89 (1966); Commonwealth ex rel. Page 242} Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).

Appellant alleges in his petition that following his conviction, he requested trial counsel to prosecute an appeal, but that counsel refused to do so on the ground that his appointment did not include representation of appellant on appeal.*fn2 He further contends that lack of knowledge and indigency prevented him from proceeding on his own or from retaining other counsel to press his appeal.

As we have previously stated, the right of an indigent defendant to the assistance of counsel on an appeal as of right, as set forth in the decision in Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), includes, as a necessary incident, the right to the assistance of counsel in the task of taking and perfecting such an appeal. Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 159, 218 A.2d 811, 812 (1966), and cases cited therein. Appellant, having been convicted of murder, had an absolute right to appellate review by this Court. Act of February 15, 1870, P. L. 15, § 1, 19 P.S. § 1186; Commonwealth ex rel. Cunningham v. Maroney, supra at 159, 218 A.2d at 812. Under our previous decisions, appellant's failure to take an appeal within the time allowed by law may not preclude the present assertion of that statutory right if such failure resulted from an unconstitutional deprivation of the assistance of counsel. Commonwealth ex rel. Cunningham v. Maroney, supra; 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); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).

[ 422 Pa. Page 243]

The record reveals that prior to the instant petition, appellant petitioned the court below to permit an appeal nunc pro tunc. Counsel was appointed to represent appellant in the matter. However, after considering the trial record, counsel informed the court that in his opinion there was no ground which would merit an appeal and requested permission to withdraw from the case. Permission was granted and the petition dismissed.

In dismissing the present petition, the court below relied in part on the conclusion of counsel appointed on the nunc pro tunc petition that an appeal was not warranted. The court concluded, therefore, that appellant had been afforded his day in court and that no deprivation had ...


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