Appeal from order of Court of Common Pleas of York County, Jan. T., 1966, No. 6, in case of Commonwealth of Pennsylvania v. John Parson.
John H. Chronister, Assistant Public Defender, for appellant.
Robert J. Wire, Jr., Assistant District Attorney, and Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J. Dissenting Opinion by Hoffman, J. Montgomery and Spaulding, JJ., join in this dissenting opinion.
[ 219 Pa. Super. Page 49]
This is an appeal from the order of the Court of Common Pleas, Criminal Division, of York County, denying the petition of the appellant-defendant, John
[ 219 Pa. Super. Page 50]
Parson, for an appeal, nunc pro tunc, under the Post Conviction Hearing Act. The appellant was tried and found guilty of the charge of larceny in May, 1966. Post-trial motions were filed, argued and dismissed. He was sentenced to a term of two to five years.
He was represented by competent private counsel at trial and at the argument of the post-trial motions. Private counsel filed an appeal to this Court, but failed to prosecute it and on December 10, 1968, this Court entered an order of non pros.
The record shows that on September 11, 1968, his counsel petitioned this Court to withdraw on the ground of the failure of the appellant to cooperate with him. The petition was dismissed, but it was directed that the case be placed on the December, 1968 list and if it were not then argued, a petition for non pros. would be entertained. It was not argued and the order of non pros. was entered on December 10, 1968.
This appeal from the order of the court below dismissing his petition for a new appeal nunc pro tunc is based on his contentions that he was not aware of the fact that the appeal was allowed to lapse for lack of prosecution and, further, that he was unaware of his constitutional right to free counsel. Both of these contentions are not borne out by the record.
The testimony discloses that the appellant engaged the services of a Philadelphia attorney and paid him the sum of $1300.00 to handle the case. The Philadelphia attorney referred the case to local counsel in York County and forwarded to him a fee of $350.00. He indicated at the hearing that he was financially able to pay for whatever legal ...