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COMMONWEALTH EX REL. ROBINSON v. MYERS (09/26/67)

decided: September 26, 1967.

COMMONWEALTH EX REL. ROBINSON, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas of York County, Aug. T., 1964, No. 372, in case of Commonwealth ex rel. Harvey Robinson v. David N. Myers, Superintendent.

COUNSEL

Harvey Robinson, appellant, in propria persona.

John F. Rauhauser, Jr., District Attorney, for appellee.

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

Author: Roberts

[ 427 Pa. Page 105]

Pursuant to our mandate in Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966), the Court of Common Pleas of York County held a hearing to determine whether or not Robinson's failure to perfect an appeal within the time allowed by law resulted from an unconstitutional deprivation of the assistance of counsel. See Douglas v. California, 372 U.S. 353,

[ 427 Pa. Page 10683]

S. Ct. 814 (1963); Commonwealth ex rel. Robinson v. Myers, supra. Following this hearing, the court below concluded that there had not been any constitutional deprivation because Robinson had knowingly and intelligently waived his right to appeal. If this conclusion is correct, Robinson's present appeal from that order must be affirmed. See, e.g., Commonwealth v. Wallace, 427 Pa. 110, 233 A.2d 218 (1967) (filed today); Commonwealth ex rel. Stevens v. Myers, 424 Pa. 377, 227 A.2d 649 (1967); Commonwealth ex rel. Harbold v. Myers, 417 Pa. 358, 207 A.2d 805 (1965). However, in so ruling the court below seemingly failed to consider our decisions in Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883 (1966) and Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A.2d 811 (1966), where under circumstances identical to those which confronted Robinson, we held that appellants Light and Cunningham had not waived their right to appeal. Accordingly, Robinson's appeal must be sustained and the order of the court below reversed.

Harvey Robinson's present incarceration results from his having been convicted in May 1963 of voluntary manslaughter in connection with the slaying of Marlene Perez. Initially arrested in December 1962, appellant was subsequently indicted and charged with murder. At his trial, where he was represented by court appointed counsel, he entered a plea of not guilty. Immediately following the jury's verdict, appellant was sentenced to imprisonment for a term of 6 to 12 years, the maximum sentence under the statute. No post-trial motions were filed on his behalf nor was an appeal taken, but a subsequent habeas corpus petition resulted in the Douglas hearing, which forms the basis of this appeal. Commonwealth ex rel. Robinson v. Myers, supra.

[ 427 Pa. Page 107]

At the Douglas hearing appellant and his two court-appointed trial counsel testified. In our view, even when viewed in the light most favorable to the Commonwealth, the facts developed at the hearing will not support a finding that appellant's failure to prosecute an appeal is the result of an "intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938); see Commonwealth ex rel. Cunningham v. Maroney, supra.

While it is undisputed that prior to trial, counsel informed Robinson of his right to appeal any adverse verdict, it is not clear whether the possibility of filing an appeal was actually discussed during the short interval between the verdict and sentence. Robinson maintains he expressed a desire to appeal, but his counsel denies this, not on the basis of a firm recollection, but rather because he is certain that if this had occurred he would have prosecuted an appeal. However, even if we were to accept counsel's recollection (but see Commonwealth ex rel. Fairman v. Cavell, 423 Pa. 138, 142, 222 A.2d 722, 724 (1966)) this would not alter the court's obligation to make certain that the decision to forego appellate review was Robinson's own considered choice. See Commonwealth ex rel. Fink v. Rundle, 423 Pa. 133, 222 A.2d 717 (1966); cf. Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966). This is especially so since at the time of sentencing, counsel himself informed the court: "May it please the court, I am prepared to have sentence imposed now. However, the defendant himself still feels he has not done anything ...


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