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decided: September 19, 1973.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1953, Nos. 1133 and 1135, in case of Commonwealth of Pennsylvania v. Joseph F. Ligon.


Joseph Michael Smith, with him F. Emmett Fitzpatrick, Jr., and Fitzpatrick & Smith, for appellant.

Louis A. Perez, Jr., Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix.

Author: Nix

[ 454 Pa. Page 456]

In 1953, appellant pled guilty to murder generally to two separate bills of indictment charging murder and, after a court en banc made a finding of first degree in both cases, he was sentenced to two concurrent life terms. No direct appeal was taken from the judgments of sentence.

In June, 1968, appellant first challenged his sentences in a pro se Post Conviction Hearing Act*fn1 petition alleging: (a) the denial of appellate rights; (b) the use of a coerced confession; (c) the denial of the right of counsel at pre-trial and post-trial proceedings; (d) abridgement of a retroactive right; and (e) a plea of guilty unlawfully induced. The voluntary defender was appointed to represent the appellant and, after a counseled hearing in which appellant, through his counsel, restricted his attack to the assertion that the guilty plea had been improperly induced by a coerced confession, the hearing judge dismissed the petition from the bench. Subsequently, appellant requested and was

[ 454 Pa. Page 457]

    granted the right to file an Amended Post-Conviction Petition and a supplemental brief. The amended petition incorporated the original claims and added an allegation of the use of a co-defendant's confession in violation of Bruton v. United States, 391 U.S. 123 (1968). Although the hearing judge had been moved to vacate the original order of dismissal based on the appellant's representation that he wished a resolution of the Bruton issue, appellant waived the opportunity for further testimony and in the supplemental brief merely reiterated the original claims which had been pursued during the hearing, completely ignoring the alleged Bruton violation. After consideration of the brief, the court reimposed its original order dismissing the petition and also dismissed the amended petition. We affirmed the action of the hearing court in Commonwealth v. Ligon, 443 Pa. 562, 279 A.2d 150 (1971).

Appellant thereafter filed a petition in the U.S. District Court for the Eastern District of Pennsylvania seeking habeas corpus relief alleging: (a) the plea of guilty was unlawfully induced; (b) the introduction of coerced confession into evidence and the ineffective assistance of counsel; and (c) the obstruction by state officials of his right to appeal. The District Court, approving the report and recommendation of the U. S. Magistrate, denied appellant's first two grounds on the merits without a hearing, and denied his alleged denial of appellate rights under Douglas v. California, 372 U.S. 353 (1963), without prejudice. However, the Court provided that he was to be allowed to resubmit the latter ground in the event that he had not received a state hearing on that issue within 60 days. Within the sixty-day period a second hearing was held in the State Court at which time the Court made a finding that the Douglas claim had been waived. We now affirm.

[ 454 Pa. Page 458]

Where the record at trial is silent, the Commonwealth has the burden of establishing that a defendant knew both of his right to appeal and of his right if indigent to be represented by free counsel. Commonwealth v. Sprangle, 442 Pa. 271, 275 A.2d 114 (1971); Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969); Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968). The record of the initial guilty plea fails to provide any indication that the appellant was so advised and the Commonwealth failed to produce any other evidence to establish an intelligent and knowing waiver. If the record in this case ended at that point it is clear that the appellant must prevail on this issue. However, when appellant first sought relief under the P.C.H.A. in a pro se petition, he first raised the issue of the Douglas denial and conclusively established that at that point he was aware of the claim and the redress it would afford if successfully pursued. At the hearing upon the petition appellant, through his counsel, failed to assert this ground and was content to rely upon other claims for the relief he sought.

"[S]section 4 of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. 1580, 19 P.S. ยง 1180-4(b) establishes a presumption that the failure to raise an issue at some prior available time is a knowing and understanding failure sufficient to constitute a waiver." Commonwealth v. Zaffina, 432 Pa. 435, 441, 248 A.2d 5 (1968). This presumption is properly applied when petitioner was represented at the prior proceeding by counsel as was the case here. Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968). See ...

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