Appeal from order of Court of Oyer and Terminer of Dauphin County, Sept. T., 1960, No. 19, in case of Commonwealth v. Frederick Charles Stewart.
Norman M. Yoffe, for appellant.
Jerome T. Foerster, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell dissents. Dissenting Opinion by Mr. Justice Pomeroy.
On March 18, 1961, appellant was convicted of first degree murder and sentenced to life imprisonment; no appeal was taken. On October 28, 1966, he petitioned for a hearing, pursuant to the Post Conviction Hearing Act, claiming that he was not advised of his right to appeal, as mandated by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). The hearing was held on January 31, 1967, and, upon denial of this claim he appealed. We vacated and remanded for a further
hearing, holding that, while it was clear that appellant knew of his right to appeal, it was not clear from the record that he knew free counsel would be provided for the appeal. Commonwealth v. Stewart, 430 Pa. 7, 8, 241 A.2d 764, 765 (1968). Such knowledge, we held, is an important part of a defendant's rights under Douglas, supra; to establish an intelligent and intentional relinquishment or abandonment of a defendant's Douglas rights, the Commonwealth must demonstrate not only that a defendant knew he could appeal, but that he knew free counsel would be provided for the appeal if he was indigent. See Commonwealth v. Wilson, 430 Pa. 1, 4, 241 A.2d 760, 763 (1968). On August 20, 1968, a hearing was held pursuant to our remand; on November 13, 1968, the hearing judge filed an opinion holding that the Commonwealth proved by "overwhelming" evidence that appellant did know of his right to free counsel for his appeal. Appellant then appealed to this Court. We need not, however, reach the question of whether the hearing court's findings are supported by the evidence, because on the authority of Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969), we must reverse the judgment and allow the appeal as though timely filed.
Littlejohn, filed on January 24, 1969, held that where a defendant was originally sentenced to life imprisonment, the Commonwealth was precluded from seeking the death penalty if a new trial was granted. The Commonwealth could not constitutionally threaten a defendant on retrial "with more harsh punishment than that of his original conviction," Littlejohn, supra at 348, 250 A.2d at 817, nor could it single out, for a possible greater punishment, only those who succeed in getting a new trial on appeal, id. at 345, 250 A.2d at 815. Therefore, a decision not to appeal, based on fear of what the Commonwealth could not constitutionally
do, "cannot, as a matter of law, be a knowing and voluntary waiver of the right to appeal." Id. at 349, 250 A.2d at 817. Hence, if appellant in the instant case did not exercise his right to appeal because of fear of the death penalty, he cannot be said to have waived his Douglas rights and an appeal must be permitted. See Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).
Although neither PCHA hearing was conducted with Littlejohn in mind, because Littlejohn was decided after both hearings, the evidence on the record of these hearings requires us to conclude that appellant decided not to appeal because of his fear of the death penalty.*fn* At the second PCHA hearing, the record of which will be referred to as "R2," appellant, on cross-examination by the Commonwealth stated: "Mr. Bolton [one of appellant's original lawyers] said he didn't feel that it would take a ...