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COMMONWEALTH v. STEWART (05/03/68)

SUPREME COURT OF PENNSYLVANIA


decided: May 3, 1968.

COMMONWEALTH
v.
STEWART, APPELLANT

Appeal from order of Court of Oyer and Terminer of Dauphin County, Sept. T., 1960, No. 19, in case of Commonwealth of Pennsylvania v. Frederick Charles Stewart.

COUNSEL

Norman M. Yoffe, for appellant.

Jerome T. Foerster, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

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

Author: Roberts

[ 430 Pa. Page 8]

Much of what we said in Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968) is applicable here. Appellant in this post-conviction proceeding requests the right to file new trial motions and appeal from a possible denial thereof, both to be done nunc pro tunc; his request is premised upon an allegation that he was not advised of the rights mandated by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). A hearing was held, appellant's claim denied and this appeal taken.

In Wilson, we stressed that an indigent accused may waive his Douglas rights but that the Commonwealth must demonstrate that the accused knew of both his right to appeal and his right to the assistance of court-appointed appellate counsel.*fn1 The hearing record does demonstrate that appellant was informed that he could appeal but contains no testimony even remotely suggesting that he also knew that counsel was available for that purpose. We are thus faced with a record identical to that faced in Wilson ; an identical disposition will therefore be made. We remand this record to the court below with directions that the Commonwealth be permitted to offer testimony that appellant was informed of the rights accorded by the Douglas decision. If the hearing court finds that the Commonwealth is able to demonstrate that appellant knew of his right of appellate counsel, it shall enter an order denying relief. If, however, the Commonwealth fails to make such a demonstration, the court shall appoint counsel for the purpose of filing and arguing post-trial motions and, if necessary, prosecuting an appeal. In

[ 430 Pa. Page 9]

    the event post-trial motions are denied, this Court will permit, upon motion of counsel, an appeal to be docketed as if timely filed and thereafter orally argued.*fn2 We suggested in the Wilson case that an on the record inquiry at trial would be appropriate. Although some minimal attempt may have been made in that direction by the trial court in this trial, that attempt falls short. See Commonwealth ex rel. Neal v. Myers, 424 Pa. 576, 579, 227 A.2d 845, 846 (1967); Commonwealth ex rel. Fink v. Rundle, 423 Pa. 133, 136-37, 222 A.2d 717, 718-19 (1966); Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 89-91, 223 A.2d 296, 300-01 (1966).*fn3

The order of the Court of Oyer and Terminer of Dauphin County is vacated and the record is remanded with instructions.

Disposition

Order vacated.


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