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decided: July 1, 1968.


Appeal from order of Court of Oyer and Terminer of Philadelphia County, June T., 1946, No. 108, in case of Commonwealth of Pennsylvania v. Timothy Mumford.


Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

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. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 430 Pa. Page 453]

Appellant was found guilty, in 1945, of murder in the first degree and sentenced to life imprisonment. This verdict and sentence were imposed after Mumford had changed his plea from not guilty to guilty at the conclusion of the Commonwealth's case. Although no direct appeal was taken, the present petition represents appellant's third attempt at collateral relief. In 1965 he commenced a state action in habeas corpus, without the assistance of counsel, in which he alleged only that a coerced confession had been used by the Commonwealth. Having lost below, Mumford appealed to this Court which held his confession voluntary, Commonwealth ex rel. Mumford v. Cavell, 423 Pa. 280, 223 A.2d 852 (1966). Appellant next brought another hand-drawn habeas action in the federal courts, again alleging the Commonwealth's use of an involuntary confession. He lost there too, but decided to take no appeal to the Third Circuit Court of Appeals. Now, in his present Post Conviction Hearing Act petition, appellant alleges that he was never told of his right to direct appeal or to have appellate counsel as required by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). Accordingly, he seeks the right to appeal nunc pro tunc.*fn1

[ 430 Pa. Page 454]

Although Mumford was given counsel for this petition, as well as an evidentiary hearing, he was not given relief. It was the position of the court below that appellant "knowingly and intelligently waived his right of appeal." However, on the record before this Court, we cannot agree that such a waiver has been shown. In Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), we recently held that where, as here, the trial record is silent on this issue, the Commonwealth has the burden to show not only that a defendant was told, or knew, of his absolute right to appeal, but also that he knew he could have counsel for this appeal, and if indigent, that he could have free counsel. The short, eight page, post-conviction hearing record in the present case, if nothing else, demonstrates that the Commonwealth has not met its burden.

The only testimony was that of Mumford himself. Although he admitted learning of the right to appeal from a fellow inmate, it was never shown that appellant possessed such knowledge immediately after trial when he could have filed new trial motions and/or taken his direct appeal. The only evidence produced by the Commonwealth (and even this comes to our attention not through the hearing below, but only through citation in the Commonwealth's appellate brief) is a statement lifted from Mumford's self-drawn federal habeas corpus petition wherein he recited as a reason for not taking a direct appeal that "counsel dropped petitioner's case, saying if petitioner appealed he might get the electric chair." This language, the

[ 430 Pa. Page 455]

Commonwealth argues, is proof that appellant did, in fact, know of and waive his right to appeal.

For two reasons, however, we do not agree that this statement carries the day. First, even if appellant knew about appeals, the words quoted above do not convince me that Mumford waived his Douglas rights. He merely claims that counsel abandoned him. But this is far from saying that appellant himself, with full knowledge of his right to appeal, knowingly and intelligently chose to forego that right. Moreover, the statement in no way indicates that Mumford was aware of his right to counsel on appeal, or of his right to a free attorney if indigent. Thus, under Wilson, it must be said as a matter of law that the Commonwealth has not as yet shown a valid waiver.

Alternatively, it is argued by the Commonwealth that, even if appellant did not waive his Douglas rights at the time of trial, nevertheless by failing to make the Douglas claim in either of his two prior collateral attacks, he has waived the right to make such claim now under § 4 of the Post Conviction Hearing Act. Recently, in Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968), we had occasion to examine that part of § 4 which establishes a presumption that the failure to raise an issue at some prior available time is a knowing and understanding failure sufficient to constitute a waiver. In Satchell, although we upheld the constitutionality of this presumption, we made it quite clear that waiver may be presumed only where the petitioner had counsel at the time the waiver allegedly occurred. Cf. Norvell v. Illinois, 373 U.S. 420, 83 S. Ct. 1366 (1963). However, appellant in the present case prosecuted both of his ...

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