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COMMONWEALTH PENNSYLVANIA v. BENJAMIN L. YARBOUGH (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
BENJAMIN L. YARBOUGH, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 988, 989 October Term, 1976

COUNSEL

Stewart A. Bernstein, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 248 Pa. Super. Page 358]

Following a non-jury trial on January 18, 1972, appellant was convicted of carrying a concealed deadly weapon, unlawfully carrying a firearm without a license, and aggravated robbery. Pro-forma written post-trial motions for a new trial and in arrest of judgment were denied on March 8, 1972. Appellant was sentenced to a one to five year term of imprisonment. No direct appeal was filed.

On July 24, 1975, appellant filed a pro se petition under the Post Conviction Hearing Act.*fn1 Counsel was appointed and a hearing was held. The lower court denied all relief on December 29, 1975. Appellant now contends, as he did in the court below, that he did not knowingly and intelligently waive his right to a jury trial or to appear and that trial counsel was ineffective.

Appellant first contends that the lower court erred in refusing him the right to file a nunc pro tunc appeal, arguing that he was never informed of his appellate rights and therefore could not be held to a knowing and intelligent waiver. The record, however, belies this contention.

The notes of testimony for the sentencing hearing were never located, and therefore, as in all "silent record" cases, the Commonwealth had the burden of establishing that appellant knew of his right to appeal and, if indigent, to the assistance of appointed counsel. Commonwealth v. Sprangle, 442 Pa. 271, 275 A.2d 114 (1971); Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).

On cross-examination, appellant admitted that he was informed by the sentencing judge that he had a right to appeal. He further testified that trial counsel informed him

[ 248 Pa. Super. Page 359]

    that he had to appeal within thirty days. The substance of appellant's theory at the PCHA hearing was that he knew of his right to appeal, that he asked trial counsel to perfect the appeal, and that counsel was ...


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