decided: September 27, 1966.
COMMONWEALTH EX REL. FINK, APPELLANT,
Appeal from order of Court of Common Pleas of York County, Jan. T., 1966, No. 137, in case of Commonwealth ex rel. Grover Frederick Fink, Jr. v. A. T. Rundle, Warden.
Grover Frederick Fink, Jr., appellant, in propria persona.
John T. Miller, First Assistant District Attorney, and John F. Rauhauser, Jr., 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.
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In August 1965, appellant was convicted by jury of voluntary manslaughter and sentenced to a term of imprisonment
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of 6 to 12 years. Although appellant, an indigent, was represented throughout the proceedings by court appointed counsel, no post trial motions were filed and no appeal was taken.
In October 1965, appellant filed certain papers with the court below challenging the validity of his conviction and present confinement. The court, treating the papers before it as a petition for a writ of habeas corpus,*fn1 dismissed the petition without a hearing. This appeal followed.
Appellant raises numerous contentions in his petition and on this appeal. However, in light of our disposition, we deem it necessary to consider but one.
Appellant contends that court appointed counsel refused to prosecute an appeal from the judgment of conviction or sentence, and that he was therefore 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. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966); Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883 (1966); 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. 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).*fn2
[ 423 Pa. Page 136]
The court below concluded that this allegation did not warrant or require a hearing, since, in its view, the record clearly establishes a waiver by appellant of his right to seek a new trial by post-trial motion or appellate review of his conviction.*fn3 Implicit in the court's reasoning was the conclusion that appellant had waived the assistance of court appointed counsel for purposes of appeal. In making its determination, the court relied upon the following colloquy, which took place at the time appellant appeared for sentence: "Court: Mr. Fink, I presume you have discussed with your attorneys since the verdict the matter of your appearance for sentence this morning? Defendant: Yes sir. Court: I also presume that they have discussed with you the advisability or inadvisability of requesting a new trial? Defendant: Yes sir. Court: And from your appearance here it would appear you and they have decided that no such motion be filed? Defendant: Yes sir. Court: You are in accord with that decision, are you? Defendant: Yes sir."
However, in our view, this record examination of appellant by the court, although a practice which is to be commended,*fn4 is insufficient to support the conclusion
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that appellant intentionally relinquished his constitutional right to the assistance of counsel on appeal.
Appellant alleges in his petition, that appointed counsel refused to honor his request to pursue an appeal, and, moreover, that counsel threatened to "quit [the] case" if appellant persisted in seeking an appeal. In the face of these allegations, the recorded colloquy does not remove the possibility that appellant acquiesced in counsel's decision not to file post-trial motions or to appeal solely on the basis of his inability to prosecute an appeal pro se or to obtain the assistance of other counsel. Cf. Commonwealth ex rel. O'Locke v. Rundle, 415 Pa. 515, 526 n.18, 204 A.2d 439, 445
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n.18 (1964). We are thus precluded from inferring on this record the intentional abandonment by appellant of the known right to the assistance of appointed counsel on appeal required to establish waiver. Cf. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938).
Since the issue of waiver can not conclusively be determined on the basis of the petition and the record, it is clear that appellant is entitled to a hearing on this issue. See Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966); Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883 (1966); 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. 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).
The order of the Court of Common Pleas of York County is reversed and the record remanded for proceedings consistent with this opinion and the orders entered in Commonwealth ex rel. Newsome v. Myers, supra; Commonwealth ex rel. Light v. Cavell, supra; Commonwealth ex rel. Branam v. Myers, supra; Commonwealth ex rel. Robinson v. Myers, supra.