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decided: September 5, 1968.


Petition for leave to appeal from order of Superior Court, Oct. T., 1967, No. 996, affirming order of Court of Quarter Sessions of Centre County, Dec. T., 1958, Nos. 63 and 64, in case of Commonwealth of Pennsylvania v. William Ritchey.


William Ritchey, appellant, in propria persona.

Charles C. Brown, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 431 Pa. Page 270]

Appellant's petition under the Post Conviction Hearing Act was dismissed by the hearing court and the denial of relief was affirmed per curiam by the Superior Court. We granted leave to file a petition for allocatur to examine appellant's claimed denial of his right to counsel.

Petitioner was one of three inmates in the State Correctional Institution at Rockview, Centre County, who escaped on October 29, 1958. All three were apprehended the next day in Harrisburg and on November 18, 1958 all three appeared in court. Petitioner and Kenneth John Wagner were without counsel; Paul Custalow had retained Attorney Thomas Gill to represent him. At the outset of the hearing the following colloquy took place: "The Court: Q. Do either of you gentlemen desire counsel? A. By Mr. Wagner: No, sir. By Mr. Ritchey: No, sir. Q. You understand that you are entitled to Counsel if you would like to have it? A. By Mr. Wagner: No. By Mr. Ritchey: No. The Court: Let the record show that Mr. Gill, Attorney for

[ 431 Pa. Page 271]

Mr. Custalow, explained to all three of the defendants their Constitutional rights and right of Counsel. Would you please do that, Mr. Gill? (Mr. Gill consults with all three defendants and then states to the court that the defendants, Mr. Wagner and Mr. Ritchey, have indicated that they do not desire counsel.)" The indictments were then handed to the defendants and written pleas of guilty were entered thereon by each defendant. Appellant did not prosecute an appeal from the entry of the guilty plea.

Appellant filed a habeas corpus petition in late 1964, alleging among other things that he had been represented by ineffective counsel, that he had been denied his requests for counsel at the preliminary stages of the proceedings, that he had no counsel and that the "appointment" of counsel had been merely for the purpose of lending legality to the proceedings. This petition for a writ of habeas corpus was dismissed. That determination was affirmed by the Superior Court. Relief subsequently was denied by this Court and the United States District Court for the Western District of Pennsylvania.

In December 1966 appellant filed the present petition under the Post Conviction Hearing Act. This petition differs from the earlier one in that petitioner contends at this juncture that he was never informed of his right to free counsel if he was indigent.*fn1

[ 431 Pa. Page 272]

The Sixth Amendment to the Constitution of the United States, which is applicable to criminal proceedings in state courts, requires that the accused be given the assistance of counsel at every critical stage of a criminal prosecution. White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963). We have held repeatedly that the hearing on a guilty plea is such a critical stage. Commonwealth ex rel. Fairman v. Cavell, 423 Pa. 138, 222 A.2d 722 (1966); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). In the latter case we said: "Surely, such a hearing is a stage where rights might be preserved or lost. It is, in our view, as critical a stage for the accused as any he faces in the criminal proceedings against him."

Of course, it is impossible to "force" counsel on an indigent defendant, Moore v. Michigan, 355 U.S. 155, 161, 78 S. Ct. 191, 195 (1957), and the right may be effectively waived. However, a determination that the right in fact has been waived must be carefully made with due regard for the possible limited knowledge and appreciation by the defendant of the ramifications of the right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938). Our courts must be cautious in finding waiver of a constitutional right so fundamental and so pervasive. And as a first principle, the court must make certain that the accused understands the full dimensions of the right. It cannot be assumed

[ 431 Pa. Page 273]

    that the accused understands any element of the right which has not been explicitly explained. For example, in the instant case petitioner was told only that he was "entitled to counsel." A careful examination of the record has failed to establish any evidence which would lead us to conclude that appellant was ever informed that he was entitled to free counsel. The trial judge instructed the attorney for Ritchey's co-defendant to explain the right of counsel to appellant. The content of this explanation does not appear of record nor was Mr. Gill able to recall whether the exact nature of the right to counsel was ever discussed. His testimony was: [By the District Attorney]: "Q. Mr. Gill, do you remember what discussion you had with Mr. Ritchey in particular, as to his constitutional rights and his right to any attorney? A. I cannot remember, Mr. Harris, any specific wording or the extent of the discussion. It took place, I am not too sure, here in the court room, at the counsel table after an explanation had already been given and an offer made by the court to the two defendants that were not represented by counsel, to provide them with counsel, at the request of the court, I made a further more private explanation of this, that is in a conversation between myself and the two individuals but as I say, I am reasonably sure it was at the counsel table. It was a fairly brief discussion, but sufficient to satisfy myself that they apparently were making an informed decision and statement to me which I then repeated to the Court that they did not desire counsel. Q. Mr. Gill, do you hear Mr. Ritchey's testimony here today that all of . . . all you told him was that he had a right to counsel? A. Yes sir. Q. Does your recollection include that you told him more than just that? A. I can't say specifically but I would say probably the conversation was a little more longer than that statement."*fn2

[ 431 Pa. Page 274]

Record of 1965 Habeas Corpus Proceeding, pp. 24-25.

Therefore, it would seem that appellant raises a valid argument when he asserts: "Nowhere has any proof been offered, nor has it ever been contended by the Commonwealth, that appellant was ever informed nor made aware that counsel would be appointed to appellant free of cost." Merely telling a defendant that he is "entitled" to counsel will be a meaningless gesture if he is not made aware that free counsel will be supplied if necessary.*fn3 We reaffirm our earlier holding

[ 431 Pa. Page 275]

    that as a matter of law there cannot be a finding of a knowing and intelligent waiver of the right to counsel unless the accused shall have been explicitly informed that he is entitled to free counsel if he is indigent. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968); Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968). Application of this rule will avoid unnecessary situations like the present case where it is clear that the appellant did not understand the full meaning of the right to counsel.*fn4

Since the guilty plea record is silent as to whether this defendant was told that counsel would be supplied without cost to him, the burden of proof is upon the Commonwealth to demonstrate he was so informed in order to establish a knowing and intelligent waiver.

[ 431 Pa. Page 276]

Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). Ordinarily, in cases where the post-conviction hearing pre-dated our Wilson decision, we would remand the proceeding to allow the Commonwealth to meet this burden if it could. But no such remand is necessary in the present case since the transcript of the hearing clearly demonstrates that counsel for appellant's co-defendant (the only man in a position to tell appellant of his rights) could not specifically recall what he told appellant during the short conference prior to the entry of the guilty plea. The possibility of appellant having learned of his right to free counsel from any other source on this record is sheer speculation.*fn5

Accordingly, the petition for allocatur is granted, the order of the Superior Court is reversed, the order of the Court of Quarter Sessions of Centre County is vacated and the record remanded for a new trial.


Allocatur granted, order of Superior Court reversed, order of Court of Quarter Sessions of Centre County vacated, and record remanded for new trial.

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