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COMMONWEALTH v. MOORE (10/09/70)

decided: October 9, 1970.

COMMONWEALTH
v.
MOORE, APPELLANT



Appeal from order of Court of Oyer and Terminer of Berks County, Dec. T., 1961, No. 149, in case of Commonwealth v. Michael Patrick Moore.

COUNSEL

Lois G. Forer, for appellant.

Grant E. Wesner, Assistant District Attorney, and Robert L. Van Hoove, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen concurs in the result.

Author: Roberts

[ 440 Pa. Page 88]

On October 12, 1961, a young girl was found dead in a wooded section of Reading, Pennsylvania; she had been strangled. Later that day Michael Moore, then thirteen years old, was apprehended and questioned about the killing. Within two hours he gave the police a statement in which he admitted having carried the girl into the woods but denied having killed her or having known that she was dead. He was subsequently charged with murder.

At the time of his trial Michael first entered a plea of not guilty by reason of insanity, later changed it to guilty, and was given a nine to twenty year sentence on the basis of the trial court's conclusion that he had committed murder in the second degree. No appeal was taken.

In 1966 Michael filed a petition for a writ of habeas corpus which, as amended, asserted that: (1) his confession was coerced; (2) he lacked the capacity to confess; (3) he lacked the capacity to enter a knowing and intelligent plea of guilty; (4) he lacked the requisite mens rea at the time of the killing to justify a conviction; (5) the Court of Oyer and Terminer lacked jurisdiction to hear the case; (6) adverse newspaper publicity denied him a fair trial; and (7) the trial court erred in failing to advise him of his right to the assistance of free counsel on appeal.

The hearing court denied Michael's petition and an appeal was taken. Unfortunately, the record was never certified to this Court and the appeal had to be quashed. A PCHA petition was then filed raising the same issues. The hearing court took some testimony, incorporated the earlier habeas corpus hearing testimony, and denied the petition. This appeal followed.

It is clear that the trial court did err in failing to inform petitioner of his right to have counsel appointed

[ 440 Pa. Page 89]

    to prosecute an appeal if he could not afford to continue to retain counsel of his own. See Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968); Commonwealth v. Stewart, 430 Pa. 7, 241 A.2d 764 (1968). The hearing court misapprehended the nature of this right when it denied this claim because it felt that the petitioner was competently represented at his trial and because it failed to perceive any basis for an appeal. These observations are irrelevant to the question whether petitioner knowingly waived his right to appeal, an essential ingredient of which is the right to free appellate counsel. Since there has been no suggestion that petitioner knew of his rights in this matter we find that he was denied his right of appeal. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963); Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968). Petitioner was not, however, prejudiced by this error. His second degree murder conviction was based on a guilty plea, so he may raise in this collateral proceeding any issues which he might have raised on a direct appeal. Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968); Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967).

Petitioner's claim that the adverse newspaper publicity denied him a fair trial must be rejected because he has failed to provide factual support for the assertion that the allegedly inflammatory ...


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