Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1965, No. 1949, in case of Commonwealth ex rel. Anthony Scoleri v. David N. Myers, Superintendent.
Edward J. Morris, for appellant.
Richard A. Sprague, First Assistant District Attorney, with him Benjamin H. Levintow and Joseph M. Smith, Assistant District Attorneys, and Arlen Specter, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Roberts.
On September 30, 1964, the appellant, Anthony Scoleri, was convicted by a jury of murder in the first degree and punishment was fixed at death. A motion for a new trial was argued before the court en banc on May 24, 1965. It was dismissed July 26, 1965, and on the same day sentence was imposed as the jury directed. No appeal was entered from the judgment.*fn1
On October 15, 1965 (81 days after judgment of sentence), Scoleri instituted this action in habeas corpus contending that he was denied due process of law in connection with his right to appeal, particularly that he had been denied his constitutional right to the assistance of counsel for "the purpose of taking an appeal". After hearing, the trial court dismissed the proceedings. An appeal from that order is now before us.
Throughout the trial, during argument of the post trial motion and also the sentence proceeding, Scoleri was represented by one John Rogers Carroll, Esq., of the Philadelphia bar, who is recognized as an experienced
and competent advocate. Carroll was retained by Scoleri's sister, Margaret Sbraccia, who promised to pay a fee of $5000 which was to cover only his services at trial. Two thousand dollars of the agreed amount was paid; the balance was not. At the time of argument for a new trial below, Carroll said to Mrs. Sbraccia, "Look, you haven't done what you promised to do, I am not going on with this thing." After the imposition of sentence, because he had not received the balance of his fee, Carroll did nothing further on behalf of his client.
Carroll did not inform the court of his intentions or request permission thereof to withdraw from the case.*fn2 Neither did he ever inform Scoleri personally of his "withdrawal" or intention not to file an appeal. It further appears that he did not at any time discuss with Scoleri the prescribed time limit for filing an appeal, or in fact communicate with him or any member of his family in any manner following the day sentence was imposed.
Scoleri, 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. See also, Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966). He also had the constitutional right to the assistance of counsel in perfecting and prosecuting such an appeal: Commonwealth ex rel. Newsome v. Myers, supra, and Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A.2d 811 (1966). However, whether or not an appeal was to be filed and prosecuted ...