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COMMONWEALTH EX REL. FINK v. RUNDLE (09/27/66)

decided: September 27, 1966.

COMMONWEALTH EX REL. FINK, APPELLANT,
v.
RUNDLE



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.

COUNSEL

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.

Author: Roberts

[ 423 Pa. Page 134]

In August 1965, appellant was convicted by jury of voluntary manslaughter and sentenced to a term of imprisonment

[ 423 Pa. Page 135]

    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 ...


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