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COMMONWEALTH v. NORMAN (04/23/74)

decided: April 23, 1974.

COMMONWEALTH
v.
NORMAN, APPELLANT



Appeal from order of Court of Common Pleas of Berks County, June T., 1962, No. 159, in case of Commonwealth of Pennsylvania v. Albert Norman.

COUNSEL

A. Anthony Kilkuskie, Assistant Public Defender, and Fred I. Noch, Public Defender, for appellant.

Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

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

Author: Manderino

[ 456 Pa. Page 253]

Appellant, Albert Norman, on June 15, 1962, was convicted in a jury trial of murder in the second degree and received a sentence of ten to twenty years imprisonment. Post-verdict motions were not filed and no appeal was taken from the judgment of sentence. In 1965, appellant filed a petition for a writ of habeas corpus which was dismissed after a hearing. This Court affirmed that order on April 18, 1967. Commonwealth ex rel. Norman v. Stitzel, 425 Pa. 184, 228 A.2d 373 (1967). The case reached this Court a second time when an appeal was taken from an order entered on April 2, 1969, which dismissed a PCHA petition filed by the appellant. Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971).

In our second opinion, we said: "Hence, the hearing court was in error in determining that appellant's prior habeas corpus appeal foreclosed any consideration of whether he had been denied his right of appeal from

[ 456 Pa. Page 254]

    the judgment of sentence. The decision of our Court in that habeas corpus appeal specifically noted that we were not then considering whether appellant had been denied the effective assistance of counsel in the filing and prosecuting of an appeal. See Commonwealth ex rel. Norman v. Stitzel, supra at 185 n. 1, 228 A.2d at 375 n. 1. We therefore conclude the issue was not finally litigated, and no waiver occurred.

". . . .

"There is no indication on the record now before us that appellant was ever informed either by the court or counsel of his right of appeal. Normally, we would find the Commonwealth has failed to meet its burden of proof and remand for the filing of post-trial motions from the judgment of sentence as though timely filed, and if appellant lacked significant funds, he would be afforded free counsel to argue the motions and assist him in prosecuting an appeal, if necessary. . . .

"However, in the instant case the hearing court did not permit any testimony on the merits of appellant's petition, erroneously ruling that the issue had been finally litigated. We accordingly must remand to the PCHA court to allow the Commonwealth an opportunity to introduce evidence that appellant knew both of his right of appeal and of his right to have counsel appointed to assist ...


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