Appeals from order of Court of Quarter Sessions of Luzerne County, Sept. T., 1964, Nos. 139, 139A to 139D, inclusive, in case of Commonwealth of Pennsylvania v. George Markowski.
Carmen J. Maffei, Assistant Public Defender, and Peter J. Webby, Public Defender, for appellant.
Blythe H. Evans, Jr., District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissenting opinion.
[ 215 Pa. Super. Page 157]
Dissenting Opinion by Spaulding, J.:
This is an appeal by George Markowski from the dismissal of a post-conviction petition. Appellant contends he was denied the right to direct appeals from convictions on 5 counts of burglary and larceny on November 10, 1964.
As the trial record fails to show that appellant was advised of his right to take direct appeals and to have the assistance of counsel for that purpose, the Commonwealth carries the burden of proving appellant waived the right to appeal. Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). The court below dismissed the petition on the ground that this burden had been met. I disagree.
At the hearing below, appellant testified that he was not advised of his right to appeal or to have free counsel to assist on the appeal. His trial counsel testified he did not recall advising appellant of his appeal rights or the right to file post-trial motions. As it thus appears that appellant was not advised of these rights, a waiver may be established only if the Commonwealth demonstrates appellant had independent knowledge of his rights. This has not been done. Appellant testified that he learned of his right to appeal while in prison. ...