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

SUPREME COURT OF PENNSYLVANIA


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 advice of my attorney. Court: Do you agree with the motion for the new trial in those bills be withdrawn? Defendant: Yes, sir."

In our view, as was the case in Commonwealth ex rel. Fink v. Rundle, supra, the record examination of appellant by the trial court, while a practice to be commended,*fn4 is not sufficient by itself to support the

[ 424 Pa. Page 580]

    conclusion that Neal knowingly and intelligently waived his absolute right to appellate review. Ibid. at 136-38, 222 A.2d at 718-19; see Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69, 202 A.2d 303, 305 (1964). In view of Neal's allegation that he was abandoned by his counsel as soon as his poverty was discovered, "the recorded colloquy does not remove the possibility that appellant acquiesced in counsel's decision [to withdraw] post-trial motions [and not] to appeal solely on the basis of his inability to prosecute an appeal pro se or to obtain the assistance of other counsel." Commonwealth ex rel. Fink v. Rundle, supra at 137, 222 A.2d at 719; 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, 21-23, 213 A.2d 613, 624-26 (1965).

Like the decision not to seek appellate review of a conviction, the entry of a guilty plea requires that the accused fully understand the nature and consequences of his action. Commonwealth ex rel. West v. Myers, 423 Pa. 1, 222 A.2d 918 (1966). Under the peculiar facts of this case, the validity of Neal's plea may depend upon the determination of his waiver with respect to his right of appeal. For if, at the time the plea was entered, his counsel had truly abandoned him, the voluntariness of his plea is open to serious doubt.*fn5 On

[ 424 Pa. Page 581]

    the other hand, if Neal and his counsel determined that the best chance for favorable treatment from the court was to show a repentant attitude and plead guilty to the latest indictments, the decision to withdraw the post-trial motions may have followed inexorably. Cf. Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 347-50, 223 A.2d 699, 704-06 (1966); Commonwealth ex rel. Edowski v. Maroney, 423 Pa. 229, 234-36, 223 A.2d 749, 752-53 (1966).

Since the truth or falsity of appellant's allegations regarding his abandonment of his appeal and the entry of his guilty plea cannot be conclusively determined on the basis of the petition and the record, it is clear that he is entitled to a hearing on these issues. See Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 343-44, 223 A.2d 699, 702 (1966); Commonwealth ex rel. West v. Myers, 423 Pa. 1, 4, 222 A.2d 918, 920-21 (1966); Commonwealth ex rel. Fink v. Maroney, 423 Pa. 133, 222 A.2d 717 (1966); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 22 n.28, 213 A.2d 613, 625 n.28 (1965).

The order of the Superior Court is reversed and the record remanded to the Court of Common Pleas of Philadelphia County for proceedings consistent with this opinion.

Disposition

Order of Superior Court reversed and record remanded to lower court.


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