Appeal from order of Court of Common Pleas of Crawford County, Sept. T., 1963, No. 107, in case of Commonwealth ex rel. Richard Mullins v. James F. Maroney, Superintendent.
Paul D. Shafer, Jr., Assistant District Attorney, with him Vincent J. Pepicelli, District Attorney, for appellant.
Edwin L. Klett, with him John M. O'Laughlin, and Eckert, Seamans & Cherin, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J.
[ 209 Pa. Super. Page 271]
The Commonwealth appeals the order of the court below granting a new trial in this habeas corpus proceeding on the ground relator was deprived of his constitutional right to counsel at his guilty plea hearing and sentencing.
The sole question before this court is whether relator waived his right to counsel.
Relator was accused of being one of three men who staged an armed robbery of the Loblaw Market in Meadville in November of 1961. He and his co-defendants, Matteson and Hopkins, were arrested in Marion,
[ 209 Pa. Super. Page 272]
Ohio. Matteson and Hopkins waived extradition and were returned to Meadville and arraigned on December 2, 1961. Relator fought extradition and apparently consulted an Ohio attorney, but was returned to Meadville on February 1, 1962 and appeared before Magistrate Ladner that day. The three defendants appeared in court on February 5, 1962 at which time relator pleaded guilty to an indictment charging him with being an accessory before the fact to armed robbery.*fn1 He was sentenced on February 26, 1962 by Judge Herbert A. Mook. Relator then filed a petition for a writ of habeas corpus alleging deprivation of counsel. The dismissal of the petition after a hearing by Judge Mook on April 30, 1964, on his finding that Mullins had competently and intelligently waived counsel, was affirmed by this court, Commonwealth ex rel. Mullins v. Maroney, 204 Pa. Superior Ct. 749, 205 A.2d 122 (1964), and allocatur was refused by the Supreme Court of Pennsylvania, 204 Pa. Superior Ct. xxxix. Relator then presented his case to the Federal courts which directed him to reapply to Pennsylvania courts in light of recent Pennsylvania decisions. He did so reapply, and Judge Mook having died, Judge Glenn E. Mencer was specially appointed to preside in the case. After reviewing the record and the transcript of the hearing held before Judge Mook on August 5, 1963, Judge Mencer decided that relator had not intelligently waived counsel and granted a new trial.
To be a valid waiver of a right so fundamental as the right to counsel the waiver must have been the knowing and understanding act of the accused. Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964). In examining the validity of such a waiver this court must consider "all of the facts and circumstances of the particular case, including the background
[ 209 Pa. Super. Page 273]
and conduct of the accused. . . ." Commonwealth ex rel. McCray v. Rundle, supra, at 69. The burden is initially upon the Commonwealth to show that the accused "was advised or was aware of his right to have assigned counsel but that the accused intelligently and understandingly rejected the services of counsel." Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 525-26, 204 A.2d 439, 444 (1964). But Commonwealth ex rel. Wright v. Cavell, 422 Pa. 253, 220 A.2d 611 (1966), has expressly recognized the rule, applicable in federal courts as well, that a defendant who refuses the appointment of counsel must show by a preponderance of the evidence that his waiver was not understandingly and intelligently made. Chief Justice Bell there stated at page 258: "The burden of showing a voluntary understanding and intelligent waiver of counsel is on the Commonwealth where the record is silent, or indicates that there was no understanding and intelligent waiver. . . . However, where relator refused to have the court appoint a lawyer to represent him and this refusal appears of record, the accused must show by a preponderance of the evidence that the waiver was not understandingly and intelligently made by him." Accord, Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. ed. 2d 70 (1962); Moore v. Michigan, 355 U.S. 155, 78 S. Ct. 191, 2 L. ed. 2d 167 (1957). In Moore v. Michigan, supra, Justice Brennan said that when a defendant collaterally attacks a conviction on the ground he did not have benefit of counsel "he has the burden of showing, by a preponderance of the evidence, that he did not have counsel and did not competently and intelligently waive his constitutional right to the assistance of counsel." 355 U.S. 161, 2 L. ed. 2d 172. In Carnley v. Cochran, supra, Justice Brennan explained Moore v. Michigan as follows: "In Moore, the record showed clearly that the petitioner had expressly declined an offer of counsel by the trial judge, and we
[ 209 Pa. Super. Page 274]
held that the accused had to show by a preponderance of the evidence that his acquiescence was not sufficiently understanding and intelligent to amount to an effective waiver. But no such burden can be imposed upon an accused unless the record -- or a hearing, where required -- reveals his affirmative acquiescence."
The transcript of the guilty plea demonstrates that relator was asked if he wanted counsel and replied that he did not. The following appears of record:
"Q. Your name is Richard Mullins?