Appeal from order of Court of Common Pleas of Delaware County, No. 9184 of 1963, in case of Commonwealth ex rel. Rayford Stevens v. David N. Myers, Superintendent.
M. R. Turk, with him Charles J. Odgers, Jr., Public Defender, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, with him Vram S. Nedurian, Assistant District Attorney, Paul R. Sand, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
In Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 21-23, 213 A.2d 613, 624-26 (1965), we directed that
the Court of Common Pleas of Delaware County hold a hearing to determine whether petitioner had been deprived of his right to the assistance of counsel on direct appeal, Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), or whether his failure to appeal resulted from an intelligent and knowing waiver of that right. The Stevens' petition contained the allegation that his trial counsel had refused to take an appeal because of petitioner's lack of funds. This claim, which was not contradicted by the record then before us, would, if proved, support the issuance of the writ of habeas corpus as requested. See, e.g., 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).
Pursuant to our mandate, a hearing was held in the court below. At that time the Commonwealth introduced into evidence correspondence between petitioner and his trial counsel which unequivocally shows that the failure to appeal was the result of a knowing and intelligent waiver.*fn1 See Commonwealth ex rel. Page 379} McCray v. Rundle, 415 Pa. 65, 69-70, 202 A.2d 303, 305 (1964). Moreover, petitioner's trial counsel testified that despite petitioner's stated desire not to appeal, he did everything he could to impress upon him the seriousness of that decision and to offer him any assistance he could.*fn2 He also testified that he recognized his professional responsibility to petitioner and, had petitioner desired it, would have perfected an appeal regardless of petitioner's financial ability. On the basis of a complete record it now appears that not only did counsel "ably represent petitioner at trial"*fn3 but that he was prepared to give him the same type of representation on appeal.