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COMMONWEALTH v. JONES (12/30/71)

decided: December 30, 1971.

COMMONWEALTH
v.
JONES, APPELLANT



Appeal from order of Court of Common Pleas of Lancaster County, April T., 1930, No. 243, in case of Commonwealth of Pennsylvania v. Robert C. Jones.

COUNSEL

Michael J. Perezous, and Xakellis, Perezous & Mongiovi, for appellant.

Henry J. Rutherford, First Assistant District Attorney, and Clarence C. Newcomer, 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. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Roberts

[ 447 Pa. Page 229]

On September 9, 1930, following a trial by jury, appellant Robert C. Jones was convicted of first degree murder. He was sentenced to life imprisonment. No post-trial motions were filed nor was a direct appeal taken.

In 1967, appellant filed a PCHA petition,*fn1 alleging that he was denied his constitutional right of appeal under Douglas*fn2 because his privately retained counsel failed to inform him of such a right.*fn3 The hearing court found that appellant had knowingly waived his

[ 447 Pa. Page 230]

    right to appeal and denied relief.*fn4 This appeal followed.

Appellant argues on this appeal that the hearing court improperly placed upon appellant in this silent record case the burden of demonstrating that his failure to exercise his Douglas rights was not knowing and intelligent. We agree with appellant that such an allocation of the burden of proof offends the constitutionally mandated federal standards of waiver, and accordingly we vacate the order of dismissal and remand for a hearing consistent with this opinion.

It is firmly and definitively established that this defendant has a constitutionally-guaranteed right of access to the appeal process. That right, established by Douglas v. California, was made fully retroactive in Smith v. Crouse, 378 U.S. 584, 84 S. Ct. 1929 (1964) (per curiam); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).

Thus the dispostive issue here is whether the defendant effectively waived his constitutional right of appeal. And since a federal constitutional right is involved, federal standards of waiver must be applied. Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 849 (1963); Rice v. Olson, 324 U.S. 786, 791, 65 S. Ct. 989, 992 (1945).

The federal standards of waiver that control this case are quite explicit. In Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019 (1938), the United States Supreme Court held that the waiver of a constitutional right

[ 447 Pa. Page 231]

    must be "intelligent and knowing." Amplifying that decision the Supreme Court ruled in Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884 (1962) that: ". . . [ p ] resuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver." (Emphasis added.) Id. at 516, 82 S. Ct. at 890. Thus we are constitutionally unable in silent record cases to place upon petitioner the burden of demonstrating that his failure to exercise his Douglas rights was not knowing and intelligent since this would be "[p]resuming waiver from a silent record."

This Court has specifically recognized that we are constitutionally compelled to apply the above described federal standards of waiver. In Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), this Court held that ". . . the burden of demonstrating a waiver . . . where, as here, the record is silent . . . is placed upon the Commonwealth. . . ." Id. at 3, 241 A.2d at 762. And we have followed our holding in Wilson in numerous other cases. See, e.g., Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971); Commonwealth v. Sprangle, 442 Pa. 271, 275 A.2d 114 (1971); Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A.2d 183 (1970); Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (1969); Commonwealth v. Zaffina, 432 Pa. 435, 248 A.2d 5 (1968); Commonwealth v. ...


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