Appeal from order of Court of Common Pleas of York County, Jan. T., 1966, No. 137, in case of Commonwealth ex rel. Grover Frederick Fink, Jr. v. A. T. Rundle, Warden.
Grover Frederick Fink, Jr., appellant, in propria persona.
John T. Miller, First Assistant District Attorney, and John F. Rauhauser, Jr., District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.
Grover Fink, appellant, was found guilty of voluntary manslaughter and sentenced to a term of 6 to 12 years imprisonment. No post-trial motions were filed and no appeal was taken. Two months after his sentence commenced Fink filed certain hand drawn papers, treated by the court as a petition for a writ of habeas corpus, in which he sought the right to file new trial motions and, if necessary, prosecute a direct appeal to this Court. It was appellant's contention that his two court-appointed counsel refused to take an appeal for him in violation of Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963) and numerous decisions of this Court. It was held below, however, that the colloquy at sentencing between appellant, the trial judge and counsel sufficiently demonstrated a waiver of the right to appeal such that no hearing was necessary on Fink's habeas corpus petition. On appeal to this Court, we reversed, holding that this colloquy was insufficient, by itself, to demonstrate a knowing and intelligent waiver of Douglas rights. Accordingly, we remanded the record, instructing the court below to
hold an evidentiary hearing on the waiver issue. Commonwealth ex rel. Fink v. Rundle, 423 Pa. 133, 222 A.2d 717 (1966). After counsel had been appointed, that hearing was held, relief again denied, and the present appeal taken.*fn1
Appellant admitted at the hearing below that trial counsel did inform him of his absolute right of appeal, and even prepared new trial motions. However, Fink asserts that once these motions were prepared, one of his two lawyers told appellant that he saw no merit in the appeal and that he would withdraw from the case immediately after the motions were filed.*fn2 Fink testified that he was without funds to hire a new attorney and that he was never informed of his right to have free appellate counsel. Accordingly, appellant maintains that although he went through the formalities of waiving his right to file post-trial motions by telling the trial judge at sentencing
that no such motions would be filed, in fact, he never intelligently waived his appellate rights.*fn3
There is no doubt that if Fink's trial counsel really threatened to withdraw from the case, they were at least under a duty to tell their indigent client that a new court-appointed attorney would be made available, without charge, to assist appellant on appeal. Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968); Commonwealth v. Payton, 431 Pa. 105, 244 A.2d 644 (1968). However, the hearing judge chose to disbelieve Fink's testimony and accept as true that of appellant's two trial lawyers, both of whom categorically denied having ever threatened to leave the case. These men testified that they held two conferences with appellant after trial, that they had prepared the new trial motions and had shown them to Fink, but that they had also told their client that his appeal seemed without merit. It was appellant himself who finally expressed the desire not to file the motions. Throughout the post-trial period counsel had guaranteed appellant that, if he so desired, "he would have his appeal." (Record at 30.)
On the basis of the testimony below, however, it is still possible that Fink believed that even his court-appointed trial counsel would not continue the case on appeal unless paid. Moreover, neither of appellant's attorneys, in their testimony below, ...