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decided: November 27, 1968.


Appeal from order of Court of Oyer and Terminer of Allegheny County, Jan. T., 1958, No. 14, in case of Commonwealth v. Frank D. Zaffina.


John J. Dean, for appellant.

Charles B. Watkins and Carol Mary Los, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell dissents. 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 437]

This is an appeal from a denial without hearing of a petition under the Post Conviction Hearing Act. Appellant originally pled guilty to murder generally and his degree of guilt hearing resulted in a conviction for first degree felony-murder. No appeal was taken from this conviction; but this petition represents appellant's third attempt at collateral relief. His first application for a writ of habeas corpus was denied without a hearing. His second application was also denied without a hearing with this Court affirming the disposition. Commonwealth ex rel. Zaffina v. Maroney, 423 Pa. 237, 223 A.2d 678 (1966). In the present petition, appellant raises for the first time the contention that he was denied his right to know of and have counsel on direct appeal as required by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).

The Commonwealth initially questions the legal necessity of granting appellant the right to direct appeal. It bases this argument on our holdings in Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968) and Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967) that where the defendant has entered a plea of guilty to murder generally and has been convicted of murder in the second degree, the failure to advise an indigent defendant of his Douglas rights does not necessarily entitle the defendant to a direct appeal. The rationale for these holdings was that the challenges which a defendant in this position might urge -- the validity of the plea and the legality of the sentence -- could be presented in a collateral attack as well as on a direct appeal and that since these issues are adjudicated in the collateral appeal there is no need to grant a direct appeal.

[ 432 Pa. Page 438]

But in Walters and Stokes we made it quite clear that this rationale did not apply in those cases where the petitioner had been found guilty of first degree murder. "Since the Commonwealth is required to prove the elements of first degree murder beyond a reasonable doubt . . . a defendant so convicted (who pleads guilty) may have other errors to press on direct review (in addition to the validity of his plea and legality of sentence)." Stokes, supra at 268 n.5, 232 A.2d at 194 n.5; Commonwealth v. Feldman, 432 Pa. 428, 248 A.2d 1 (1968). Nor will this Court presuppose to determine whether the petitioner has additional legitimate claims which he can raise on a direct appeal beyond those which a collateral proceeding would permit him to present. Thus we conclude that petitioner would have been prejudiced if, in fact, he was denied his right of appeal.

The Commonwealth advances several grounds for denying petitioner his right to appeal, once we decide that his right to appeal is a meaningful one. First, it contends that the record contradicts petitioner's claim that he did not make a knowing and intelligent waiver of his right of appeal. On the record before us we cannot agree that such a waiver has been shown. The Commonwealth directs our attention to appellant's post conviction hearing act petition which asserts "Appointed counsel visited petitioner a couple of times. On each occasion petitioner asked that counsel do something about his case, and on each occasion counsel only replied: 'leave it alone.'" This statement is not proof that appellant knew that he had a right to appeal. But assuming that it is, it certainly does not demonstrate that 1) he intelligently and voluntarily waived his right to appeal, 2) he knew that he had a right to counsel on appeal and 3) he knew he had a right to free counsel if indigent. In

[ 432 Pa. Page 439]

    presented by the litigants and not properly of record.*fn* The testimony of petitioner's trial counsel is crucial to the validity of petitioner's claim; certainly it should be sworn to, offered in open court in the usual manner and subject to the often telling exploration by cross-examination. None of these traditional and statutorily prescribed safeguards were present here.

Nor do we find persuasive the conclusion of the hearing judge that Mr. Kalson is "an experienced and able member of the bar." While this finding is not questioned, it is hardly dispositive of the issue whether on this occasion the appellant was fully informed of his right to appeal and knowingly and intelligently waived this right. What we said above applies with equal force here: whenever the facts alleged by petitioner indicate that he is entitled to a hearing, the hearing judge may never take it upon ...

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