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COMMONWEALTH v. BRITTINGHAM (03/18/71)

decided: March 18, 1971.

COMMONWEALTH
v.
BRITTINGHAM, APPELLANT



Appeal from order of Superior Court, No. 288, Oct. T., 1970, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1963, Nos. 1742, 1743 and 1744, in case of Commonwealth of Pennsylvania v. Edward Brittingham.

COUNSEL

Thomas M. Kittredge, for appellant.

J. Bruce McKissock and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, 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 took no part in the decision of this case.

Author: Roberts

[ 442 Pa. Page 243]

We must here decide whether appellant's choice not to take an appeal from a dismissal of his Post Conviction Hearing Act*fn1 petition in order to have his application for parole considered at the earliest possible date by the Parole Board is a knowing and intelligent waiver of his right to appeal. We believe a valid waiver occurred.

Appellant, Edward Brittingham, was arrested in September, 1963, and charged with larceny of a motor vehicle, burglary of a motor vehicle, larceny, and three counts of receiving stolen goods. Brittingham pleaded guilty to the charges of receiving stolen goods and not guilty to the remaining indictments. His guilty plea was accepted, and he was found not guilty on the other charges after a trial without a jury. He was sentenced to a total of from three and one half to seven years.

Appellant filed a PCHA petition on October 23, 1967, alleging his guilty plea was involuntary. His petition was dismissed after a hearing, and no appeal was taken from that determination.

On March 19, 1969, appellant filed a second PCHA petition raising substantially the same issue asserted in the earlier petition. A supplemental petition was also filed alleging appellant had not voluntarily and intelligently waived his right of appeal guaranteed by Section 11 of the Act. Hearing was held, and both petitions were dismissed. The Superior Court affirmed per curiam without opinion on May 21, 1970. A petition for allocatur was filed and granted.

[ 442 Pa. Page 244]

Appellant admits that he discussed the question of appeal with his counsel at the time his first PCHA petition was dismissed. Thus the gravamen of his argument is not that he did not know of his right to appeal but rather his waiver of appeal was not voluntary in that he was deterred from appealing by the desire to submit his application for parole at the earliest date of his parole eligibility. The "deterrence" involved is a policy of the Parole Board not to consider any applications for parole while a PCHA appeal is pending.*fn2

To the best of our knowledge, this is the first time this precise issue has come before this Court. Appellant refers us to our decision in Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967) as being controlling. There, although appellant was accused of murder, he was convicted of voluntary manslaughter. His court-appointed counsel actively discouraged taking an appeal, advising appellant that a retrial might result in a conviction of first degree murder. We held this to be an invalid waiver because appellant's conviction of the crime of the lower degree operated as an acquittal of the crime of murder, and thus his acquiescence in the decision to forego appeal was unintelligent. Id. at 108-09, 233 A.2d at 223.

To the opposite effect, the Commonwealth relies on the Harbold cases for the principle that a defendant who deliberately and knowingly chooses to bypass the orderly state procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of that decision. See Commonwealth v. Harbold, 435 Pa. 501, 257 A.2d 553 (1969); Commonwealth ex rel. Harbold v. Rundle, 427 Pa. 117, 233 A.2d 261 (1967); Commonwealth ex ...


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