No. 2327 October Term, 1978, Appeal from the Order of the Court of Common Pleas for Philadelphia County, January Term, 1972 Nos. 221-222 (P.C.H.A.)
David L. Pollack, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ. Cercone, President Judge, files a dissenting opinion.
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Appellant contends that his counsel was ineffective for not appealing (1) his judgment of sentence for burglary and possession of burglary tools and (2) a subsequent order revoking probation and imposing a sentence of total confinement. We agree and, accordingly, reverse the order denying relief under the Post Conviction Hearing Act (PCHA)*fn1 and allow appellant to file his appeals nunc pro tunc.
On August 1, 1972, appellant was convicted of burglary and possession of burglary tools. The lower court denied his post-trial motions and sentenced him to six months to two years imprisonment and five years probation. No direct appeal was taken. On February 2, 1977, the lower court revoked appellant's probation and sentenced him to two to five years imprisonment. No direct appeal was filed. On May 19, 1977, appellant filed a PCHA petition,*fn2 alleging that the Defender Association of Philadelphia, which represented him throughout all stages of his burglary and possession trial and his probation revocation hearing, was ineffective for not perfecting direct appeals. On April 26, 1978, at the hearing on his PCHA petition, appellant testified that following both his 1972 conviction and sentence and his 1977 revocation of probation and sentence, he asked the public defender who was representing him to file appeals. In support of his testimony concerning the second appeal, appellant produced correspondence from the Defender Association. In a letter to appellant dated February 10, 1977, the chief of the appeals division of the Defender Association stated that his office would not file an appeal because such
[ 271 Pa. Super. Page 177]
appeal would clearly not be successful. He further informed appellant that he had an absolute right to file an appeal and to the representation of counsel, and enclosed forms which appellant could complete and file to perfect an appeal. Appellant testified that he wrote back to the Defender Association, stating that he did not know what to do with the appeal papers. Appellant further testified that the chief of appeals replied, in a letter dated March 29, 1977, to inform appellant that filing an appeal was up to him. The Commonwealth presented no evidence. The lower court denied relief, and this appeal followed.
An indigent defendant has a constitutional right to the assistance of counsel to prosecute his appeal, and this right includes the right to such assistance in the task of taking and perfecting an appeal. Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966); Commonwealth v. Haynes, 234 Pa. Super. 556, 340 A.2d 462 (1975); Commonwealth v. Peake, 210 Pa. Super. 133, 231 A.2d 908 (1967). The right to the assistance of counsel on appeal "embodies more than the right to the assistance of counsel in 'meritorious cases'; it embodies the right to representation on appeal if the defendant so desires, whatever the prospects of success may appear to the court or counsel." Commonwealth ex rel. Newsome v. Myers, supra, 422 Pa. at 243, 220 A.2d at 888. An indigent defendant can waive his right to the assistance of counsel for the perfection and taking of an appeal "if that waiver constitutes 'an intentional relinquishment or abandonment of a known right.'" Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762 (1968) (quoting Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 218, 220 A.2d 883, 884 (1966); Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 160, 218 A.2d 811, 813 (1966)). The Commonwealth has the burden of demonstrating a waiver of these rights by a preponderance of the evidence. Commonwealth v. Wilson, supra.
In Commonwealth v. Peake, supra, the appellant testified that he urged his trial counsel, a voluntary defender, to take
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an appeal, and trial counsel testified that he told appellant that there were no grounds for an appeal and that appellant should contact the prison social worker to obtain the necessary forms if he wanted to appeal. This Court held that there could not be a finding of waiver "[i]n light of the possibility that petitioner abandoned his appeal ...