decided: November 12, 1968.
Appeal from order of Court of Oyer and Terminer of Butler County, June T., 1953, No. 6, in case of Commonwealth v. Ernest Earl Storch.
Ernest Earl Storch, appellant, in propria persona.
Robert F. Hawk, Assistant District Attorney, and John H. Brydon, District Attorney, for 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.
[ 432 Pa. Page 122]
Appellant is a convicted murderer serving a life sentence. His most recent PCHA petition was dismissed without a hearing on the grounds that all but an unlawful search and seizure claim had been previously litigated, and that there was no merit in the search and seizure claim since the challenged conduct occurred prior to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). Appellant, however, contends that he was denied the right to counsel for appeal as guaranteed by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), arguing that if given a direct appeal, his judgment would not be "final" and he could thus raise his Mapp claim under Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731 (1965).
The Commonwealth argues that appellant did not raise his Douglas claim in his PCHA petition, and it is thus not properly before this Court. However, in the course of his petition, appellant stated that his "attorney refused to take appeal as I requested at time of trial". Although appellant's hand-drawn petition may not have set out these facts in what the prosecutor considered to be the usual place, we feel that the above allegation is sufficient to preserve appellant's claim. There is no clear indication in the record before us that appellant's appointed counsel abandoned this claim at argument on appellant's petition. As a result, the denial of appellant's Douglas claim without a hearing is properly before us.*fn*
[ 432 Pa. Page 123]
Appellant's allegation, if proven true, would entitle him to relief, and there is nothing on the record that contradicts appellant's claim. Thus appellant is entitled to a hearing to determine if he was denied his right to counsel for appeal. See, e.g., Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967); Commonwealth ex rel. West v. Myers, 423 Pa. 1, 222 A.2d 918 (1966). If appellant is awarded a direct appeal, he can then attempt to raise his Mapp claim and any other trial exceptions, none of which do we now consider.
The order of the Court of Oyer and Terminer of Butler County is vacated and the case is remanded for a hearing in accordance with this opinion.