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COMMONWEALTH v. TOLBERT (05/21/68)

SUPREME COURT OF PENNSYLVANIA


decided: May 21, 1968.

COMMONWEALTH
v.
TOLBERT, APPELLANT

Appeal from order of Court of Oyer and Terminer of Philadelphia County, March T., 1953, Nos. 1133 and 1135, and Court of Common Pleas No. 3 of Philadelphia County, March T., 1965, No. 4852, and Court of Common Pleas No. 8 of Philadelphia County, June T., 1965, No. 5666, in case of Commonwealth of Pennsylvania v. James Corey Tolbert.

COUNSEL

James Corey Tolbert, appellant, in propria persona.

Roger F. Cox and Michael J. Rotko, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, 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

[ 430 Pa. Page 168]

After two extensive hearings under the Post Conviction Hearing Act in which appellant's 1953 guilty plea to murder and resultant life sentence were called into question, the hearing court denied all of appellant's claims except his prayer for the right to appeal nunc pro tunc. Pursuant to the grant of relief below, appellant has taken this appeal, although he has done so pro se.

[ 430 Pa. Page 169]

We note at the outset that appellant is constitutionally entitled to the assistance of counsel on direct appeal.*fn1 See Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). Counsel is of aid to both the appellant and this Court for he is best able to present appellant's contentions in a legally meaningful fashion. Cf. Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967). However, for reasons which do not appear of record, appellant has chosen to proceed pro se. If this choice represents an intelligent and understanding waiver of appellate counsel, then this appeal should be now entertained. If not, then appellate counsel should have been appointed by the court below.*fn2

Unable to resolve the waiver of appellate counsel issue on this record and unwilling to entertain a nunc pro tunc appeal taken without the assistance of counsel unless such assistance has been waived, we believe that the correct disposition of this litigation is a remand to the court below. If that court determines (by hearing or otherwise) that appellant did not waive

[ 430 Pa. Page 170]

    counsel and that appellant is an indigent, then it shall appoint appellate counsel. If appellant is found not to be an indigent or if he has waived appellate counsel, then this Court will entertain his appeal.*fn3

This case is remanded to the Court of Oyer and Terminer of Philadelphia County for the appointment of appellate counsel and/or other action consistent with this opinion.

Disposition

Case remanded to trial court.


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