No. 359 January Term, 1978 Appeal from Order (Post Conviction Hearing Act) of July 26, 1978, of the Court of Common Pleas, Criminal Division, of the County of Philadelphia, as of June Term, 1971, No. 6
Stephen A. Seidel, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Franklin Noel, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Eagen, C. J., dissents and notes that he is of the view that trial counsel was ineffective for not calling Mr. Purnell as a witness for the defense.
Appellant, Robert Robinson, was charged with murder, voluntary manslaughter, involuntary manslaughter, and carrying a concealed weapon arising out of the stabbing death of Ronald Townes in a Philadelphia bar in 1971. Following a trial before a court sitting without a jury on February 23, 1973, appellant was found guilty of voluntary manslaughter. Motions for a new trial and an arrest of judgment were filed by appellant and these motions were denied on December 17, 1973. Appellant was thereupon sentenced to serve a three to twelve year term of imprisonment.
Appellant failed to take a direct appeal of his conviction. Subsequently, he filed a pro se Post Conviction Hearing Act*fn1 petition on June 20, 1977. Counsel was appointed for appellant who then filed an amended PCHA petition on October 14, 1977. The PCHA court denied this petition on July 26, 1978 and appellant now seeks review of this adverse ruling.
Appellant argues that he is entitled to a direct appeal nunc pro tunc because of trial counsel's ineffectiveness in properly perfecting the appeal and that trial counsel was also ineffective for failing to call a crucial witness at trial. Addressing first the assertion that trial counsel was ineffective for failing to perfect an appeal, it must be emphasized that this is not a claim of a denial of Douglas rights. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). The testimony clearly established that appellant was fully advised, on the record, of his right of appeal at
sentencing. There is no claim that he did not understand these rights or that he at any point requested trial counsel to file an appeal. Moreover, although appellant testified during the PCHA hearing, his testimony was confined to the second issue raised in this appeal. At no point has appellant asserted that he expressed any desire to trial counsel to appeal his conviction and sentence, nor did he suggest any difficulty in communicating with counsel during the period in which an appeal would have been filed.
The legislature has mandated that, "There is a rebuttable presumption that a failure to appeal a ruling . . . is a knowing and understanding" waiver of the defendant's right to appeal. 19 P.S. § 1180-4(c). The courts of this Commonwealth have steadfastly adhered to this mandate. See e. g., Commonwealth v. LaSane, 479 Pa. 629, 633, 389 A.2d 48, 49 (1978); Commonwealth v. Jones, 477 Pa. 266, 269-70, 383 A.2d 926, 927-28 (1978); Commonwealth v. Lowers, 481 Pa. 534, 537-38, 393 A.2d 33, 35 (1978); Commonwealth v. Nero, 250 Pa. Super. 17, 22, 378 A.2d 430, 433 (1977); Commonwealth v. Eagle, 248 Pa. Super. 267, 375 A.2d 90 (1977); Commonwealth v. Phillips, 248 Pa. Super. 400, 375 A.2d 158 (1977). In this case no attempt has been made to overcome the presumption.
Thus the question must be framed as to whether trial counsel is ineffective for not perfecting an appeal where his client has waived the right of appeal? To state the question is to answer it. Appellant's sister, Mrs. Saunders, testified that she and other members of the family of appellant engaged trial counsel for appellant.*fn2 She stated that trial counsel had promised the ...