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COMMONWEALTH EX REL. LINDE v. MARONEY (11/12/68)

SUPREME COURT OF PENNSYLVANIA


decided: November 12, 1968.

COMMONWEALTH EX REL. LINDE, APPELLANT,
v.
MARONEY

Appeal from order of Court of Quarter Sessions and Court of Oyer and Terminer and General Jail Delivery of Westmoreland County, July T., 1958, No. 336 Q.S., and July T., 1958, No. 4 O. & T., in case of Commonwealth ex rel. Elmer Carl Linde v. James F. Maroney, Superintendent.

COUNSEL

Elmer Carl Linde, appellant, in propria persona.

Gilfert M. Mihalich, Assistant District Attorney, and Joseph M. Loughran, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno did not participate in the decision of this case. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 432 Pa. Page 325]

Appellant, whom we have met before, see Commonwealth ex rel. Linde v. Maroney, 420 Pa. 31, 215 A.2d 628 (1966); Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965), claims that he was not informed of his right to direct appeal, with free counsel if necessary, in violation of Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). Appellant's petition was dismissed below without a hearing.

Appellant has had a prior collateral hearing at which he was represented by counsel. Under § 4(b) (1) of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-4(b) (1), a knowing and understanding failure to raise an issue at a prior collateral proceeding acts as a waiver of that issue. Section 4(c) provides that failure to raise an issue is rebuttably presumed to be knowing and understanding, where as here appellant was represented by counsel at his prior collateral proceeding, see Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968); Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968), there is no indication that appellant's failure to raise his Douglas claim was not knowing and understanding. Thus the claim has been waived.

The order of the court below is affirmed.

Disposition

Order affirmed.

19681112

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