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COMMONWEALTH v. HENDERSON (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
HENDERSON, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1964, Nos. 999, 1000 and 1001, in case of Commonwealth of Pennsylvania v. Willie Henderson.

COUNSEL

Joseph T. Kelley, Jr., and Kelley, Moran, Gallagher & Kelley, for appellant.

Steven H. Goldblatt and Mark Sendrow, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Spaeth, J., did not participate in the consideration or decision of this case.

Author: Price

[ 231 Pa. Super. Page 191]

Appellant, represented by the Voluntary Defender's Office, was tried on March 20 to March 31, 1967, before the Honorable Edmund B. Spaeth, Jr., (now a member of this court), and a jury on charges of rape and related offenses. He was found guilty on all counts and sentenced to twelve and one-half to twenty-five years imprisonment, followed by twenty years probation. Judgment of sentence was entered on August 7, 1967, from which no appeal was taken.

On June 4, 1973, appellant filed a petition pursuant to the Post Conviction Hearing Act.*fn1 At the resultant hearing, appellant contended that the trial court failed to advise him of his right to appeal the judgment of sentence and that he had a right to a

[ 231 Pa. Super. Page 192]

    free attorney if he could not afford private counsel. As a result appellant argues that any waiver by him of his right to appeal was not made knowingly or intelligently.*fn2 The notes of testimony contain no statements concerning the appellant's right of appeal or a waiver of these rights.

It is well settled that every person convicted of a crime has the right to have his conviction and sentence reviewed through appeal, and if he is indigent to have his appeal prosecuted by appointed counsel at no expense to himself. Douglas v. California, 372 U.S. 353 (1963). These rights may be waived only if appellant displays an intentional relinquishment or abandonment of the known right or privilege. Johnson v. Zerbst, 304 U.S. 458 (1938); Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883 (1966). And in the instant appeal, where the record is silent, the burden of demonstrating a waiver is on the Commonwealth. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970).

At the post-conviction hearing the appellant testified on direct examination that at the conclusion of the trial neither the court nor counsel had advised him of his right to appeal. On cross-examination, the Commonwealth introduced a document, dated March 31, 1967, signed by appellant, informing him of his right to appeal, the proper time for appeal, and offering the assistance of the Defender Association if an appeal was desired.*fn3 Appellant never stated that he desired

[ 231 Pa. Super. Page 193]

    an appeal at that time or that he communicated such a ...


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