Appeal from order of Court of Common Pleas of Franklin County, No. 162 of 1966, in case of Commonwealth of Pennsylvania v. Cleveland Benjamin Neil.
John R. Walker, Assistant Public Defender, and Blake E. Martin, Public Defender, for appellant.
David S. Dickey, Assistant District Attorney, and Jay L. Benedict, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J.
[ 217 Pa. Super. Page 394]
Dissenting Opinion by Hoffman, J.:
Appellant was convicted before a judge and jury in 1966 of forgery and uttering. Motions in arrest of judgment and for a new trial were filed by his court-appointed counsel and were denied by the trial court. Before the statutory period for taking an appeal had expired, appellant was advised of his right to appeal with free counsel. However, as far as the record shows, he was never informed of the statutory limit within which an appeal must be filed. In fact appellant did try to file an appeal with this court, without counsel, one or two days after the end of the statutory period. His appeal was denied because the statutory period had run.
The instant case is analogous to Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). In Wilson the record indicated that "appellant may have been told that he could appeal" but was "completely silent as to whether appellant was at any point informed or was aware that he was entitled to court appointed counsel." Id. at 5, 241 A.2d at 763. The Court stated that "[t]o intelligently waive a right, the accused must first know what that right is". Id. at 4, 241 A.2d at 763, and that the Commonwealth had not demonstrated that appellant had intelligently waived his right to appeal with appointed counsel.
In the case at bar, appellant was told of his right to appeal with free counsel ...