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COMMONWEALTH EX REL. NEAL v. MYERS (03/14/67)

decided: March 14, 1967.

COMMONWEALTH EX REL. NEAL, APPELLANT,
v.
MYERS



Appeal from order of Superior Court, Oct. T., 1966, No. 165, affirming order of Court of Common Pleas No. 9 of Philadelphia County, Dec. T., 1965, No. 865, in case of Commonwealth ex rel. Gaylord Neal v. David N. Myers, Superintendent.

COUNSEL

Gaylord Neal, appellant, in propria persona.

John A. McMenamin and Alan J. Davis, Assistant District Attorneys, and Arlen Specter, District Attorney, for appellee.

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

Author: Roberts

[ 424 Pa. Page 577]

On April 27, 1964, a jury found Gaylord Neal guilty of armed robbery and conspiracy stemming from an incident on August 10, 1963. His counsel thereupon filed post-trial motions. On May 27, 1964, Neal and his counsel again appeared in court, at which time

[ 424 Pa. Page 578]

Neal pleaded guilty to four other bills of indictment charging him with aggravated robbery stemming from incidents occurring on January 23, 1964 and March 27, 1964. At the same time Neal's counsel withdrew his previous motions for a new trial and the Commonwealth agreed to nolle pros three remaining indictments. Following a hearing on the guilty pleas, the court sentenced Neal to two concurrent terms of five to twenty years, one being attributed to the jury trial and one to a guilty plea, and suspended sentence on the remaining indictments.

In September 1964, Neal filed a petition for a writ of habeas corpus in the Court of Common Pleas of Philadelphia County which was denied without a hearing. The Superior Court affirmed by means of a per curiam opinion and we denied allocatur. Appellant then unsuccessfully sought collateral relief in the federal courts. In December 1965, appellant filed another petition in the Court of Common Pleas of Philadelphia County which was again denied without a hearing. The Superior Court entered a per curiam affirmance, but this time we granted allocatur.*fn1 On this appeal Neal raises several claims but we find only two, relating

[ 424 Pa. Page 579]

    to his right to appeal and the entry of his guilty plea, meritorious of discussion.

In his petition, Neal alleges that when his retained trial counsel discovered that he was without sufficient funds to prosecute an appeal, counsel abandoned him.*fn2 This claim, if true, would amount to a denial of the right to the assistance of counsel on appeal under the decisions 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 discussed in Commonwealth ex rel. Fink v. Rundle, 423 Pa. 133, 222 A.2d 717 (1966).*fn3

When Neal appeared before the court on May 27, 1964, the following dialogue, relevant to his Douglas claim, transpired: "Defense Counsel: At this time, on behalf of the defendant, and with his assent, I withdraw that motion for a new trial, and we are here for sentence. Prosecutor: Will you ask the defendant whether that is with his consent? Crier: Gaylor [sic] Neal, you heard the request of your attorney. Is this with your consent? Defendant: Everything I say is with the ...


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