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COMMONWEALTH EX REL. ACKERMAN v. RUSSELL (06/14/68)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 14, 1968.

COMMONWEALTH EX REL. ACKERMAN, APPELLANT,
v.
RUSSELL

Appeal from orders of Court of Oyer and Terminer and General Jail Delivery of Crawford County, Sept. T., 1961, No. 61, and Sept. T., 1959, Nos. 78-A, and 62-A through L, in case of Commonwealth ex rel. Albert Ackerman v. Harry E. Russell, Superintendent.

COUNSEL

Louis D. Musica, for appellant.

John Fuller, First Assistant District Attorney, and Paul D. Shafer, Jr., District Attorney, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 212 Pa. Super. Page 462]

The facts relating to the instant case are stated in Commonwealth ex rel. Ackerman v. Russell, 209 Pa. Superior Ct. 467, 228 A.2d 208 (1967), wherein this court remanded the record to the court below directing it to conduct a hearing "for the sole purpose of determining

[ 212 Pa. Super. Page 463]

    whether petitioner-defendant intelligently and understandingly waived his right to counsel when he entered pleas of guilty" to certain indictments. After holding the hearing as directed the court below found such a waiver and denied relief.

The recently decided case of Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 236 A.2d 781 (1968), irrefutably mandates a contrary result. To demonstrate this the colloquies between the respective trial judges and defendant in both Mullins and the case at bar are reproduced below.*fn*

Mullins

"Q. Your name is Richard Mullins?

"A. Yes, sir.

"Q. Where do you live?

"A. Marion, Ohio.

"Q. Do you have an attorney?

"A. No, I don't.

"Q. You have a right to have counsel here before you appear before the court, you understand that, do you?

"A. Yes, sir."

Ackerman

"Q. Do you have an attorney?

"A. No.

"Q. How old are you?

"A. Twenty.

"Q. Do you want an attorney to represent you?

"A. No, sir, I don't think it's necessary.

[ 212 Pa. Super. Page 464]

"Q. You know you have a right to have one, if you want one?

"A. Yes, sir, I know that."

In Mullins the Supreme Court held the above colloquy to be insufficient to establish a valid waiver since "[t]his necessitates that he [petitioner] be informed or know not only of his right to consult with an attorney, but also if he is indigent that a lawyer will be appointed to represent him."

Reversed and remanded for a new trial.

Disposition

Reversed and remanded for new trial.


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