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COMMONWEALTH v. NEIL (11/13/70)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 13, 1970.

COMMONWEALTH
v.
NEIL, APPELLANT

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.

COUNSEL

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.

Author: Per Curiam

[ 217 Pa. Super. Page 394]

Order affirmed.

Disposition

Order affirmed.

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 but not that there was a

[ 217 Pa. Super. Page 395]

    time limit after which that right would be waived. Since an appellant will lose his right to appeal after the statutory period has lapsed, I believe that he must be told of the time limits within which an appeal may be brought.*fn1 Thus one cannot say that, on this record, appellant intelligently waived his right to appeal. The fact that he tried to file a pro se appeal one or two days after the end of the statutory period leads to a contrary conclusion.

The Commonwealth has the burden of showing that appellant intelligently waived his right to appeal. Id. at 3, 241 A.2d at 762. I believe that the Commonwealth has failed to sustain its burden.


*fn1 This is especially true now that the statutory period has been reduced from forty-five to thirty days. Appellate Court Jurisdiction Act, Act of July 31, 1970, Act No. 223 (Effective September 11, 1970).


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