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decided: May 3, 1968.


Appeal from order of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, March T., 1958, No. 182, in case of Commonwealth of Pennsylvania v. Clarence Wilson.


John P. Papuga, with him Patterson, Crawford, Arensberg & Dunn, for appellant.

Charles B. Watkins, Assistant District Attorney, and Robert W. Duggan, 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 2]

Appellant was convicted by a jury of murder in the first degree and was sentenced in June of 1958 to serve a life sentence. In a May, 1966 Post Conviction Hearing Act petition he requested, inter alia, the right to file new trial motions nunc pro tunc and, if these were denied, the right to appeal from that denial. A hearing was held in the court below, limited by the judge to an examination of whether appellant Wilson's right to appeal and right to the assistance of counsel on appeal had been violated. The hearing court found no violation of Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963);*fn1 this appeal was taken from that decision.

[ 430 Pa. Page 3]

Under the Act of February 15, 1870, P. L. 15, § 1, 19 P.S. § 1186, an individual convicted of either murder or voluntary manslaughter may appeal that conviction to this Court as a matter of right. If indigent (as was appellant), an accused is entitled to the assistance of counsel for the preparation of post-trial motions, Commonwealth v. Brogan, 210 Pa. Superior Ct. 495, 234 A.2d 57 (1967); Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 222 A.2d 427 (1966); and to the assistance of counsel for the perfection and taking of an appeal. See, e.g., Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 217, 220 A.2d 883, 884 (1966); Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 159, 218 A.2d 811, 812 (1966). However, an accused can waive these rights if that waiver constitutes an "intentional relinquishment or abandonment of a known right." Commonwealth ex rel. Light v. Cavell, supra at 218, 220 A.2d at 884; Commonwealth ex rel. Cunningham v. Maroney, supra at 160, 218 A.2d at 813; see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938). Finally, the burden of demonstrating a waiver of these rights by an indigent defendant where, as here, the record is silent, i.e., there is no record showing that appellant waived his right to appeal and the assistance of counsel, therefore, is placed upon the Commonwealth. See Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 107, 233 A.2d 220, 222 (1967); Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 199, 236 A.2d 781, 784 (1968); Commonwealth ex rel. Wright v. Cavell, 422 Pa. 253, 257-58, 220 A.2d 611, 614 (1966).*fn2

[ 430 Pa. Page 4]

What must the Commonwealth show to demonstrate that an accused has intentionally relinquished or abandoned his right of appeal and the assistance of counsel for that purpose?*fn3 Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965) provides an indication. We there said that the hearing should elicit sufficient information to enable the post-conviction court to make the following determination: (id. at 23, 213 A.2d at 625): "The hearing court shall then determine whether, directly or indirectly, petitioner was denied the assistance of counsel in perfecting his appeal, whether a denial of counsel was a factor in the failure to take an appeal or whether some other reason was involved which amounted to an intelligent and knowing waiver of the right to appeal and the assistance of counsel." (Emphasis supplied.) To intelligently waive a right, the accused must first know what that right is. Douglas makes clear that an essential ingredient of the right of an appeal (assuming, of course, that the now convicted accused is indigent) is the assistance of court appointed counsel to perfect and prosecute that appeal.

[ 430 Pa. Page 5]

It is evident from this record, however, that the Commonwealth contends that all an indigent accused must be told is that he can appeal. The error in this belief lies in the implicit assumption that the right of appeal can be segregated from the Douglas right of assistance of counsel for that purpose. Such conceptual segregation is not permissible for the reason that an accused's decision to appeal may well be influenced by whether he knows that court appointed counsel is available. Certainly, the Commonwealth would not contend that an accused has waived the right to contest the voluntariness of a guilty plea if all the accused has been told is that he can protest the validity of that plea, but has not been told that the protest, if successful, will result in the award of a new trial. By the same token, an accused cannot waive his right to appeal and the concomitant Douglas right to assistance of appellate counsel unless he is told of his right to such court appointed counsel.

The record below, although it does indicate that appellant may have been told that he could appeal, is completely silent as to whether appellant was at any point informed or was aware that he was entitled to court appointed counsel. Douglas requires that an indigent accused be aware of both rights. Given the Commonwealth's burden in this type of case, on this record we could conclude that it has not met that burden. However, it is at least arguable that our prior cases considering Douglas have not made it sufficiently clear that the Commonwealth must demonstrate, where the record is silent, that the post-conviction applicant was aware of both his right to appeal and his right to court appointed appellate counsel. Under these circumstances, we believe that the proper disposition of this litigation is a remand to the court below with directions that the Commonwealth be permitted to offer

[ 430 Pa. Page 6]

    testimony that appellant was aware 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.*fn4 In 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.

Nor would it be inappropriate for us to suggest, as we have in related contexts, see, e.g., Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968); Commonwealth ex rel. Barnosky v. Maroney, 414 Pa. 161, 199 A.2d 424 (1964), that the trial court, the Commonwealth or trial counsel should place on record, perhaps immediately after sentence is imposed, a full examination of the accused sufficient to demonstrate that he is aware of his right to appeal and his right to counsel for that purpose, and that he understands the full import of these rights as well as the consequences which may flow from their exercise.*fn5

[ 430 Pa. Page 7]

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


Order vacated.

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