No. 12 January Term 1978 Appeal from the Order of the Superior Court at Nos. 928 and 929 October Term 1976, affirming the Judgments of Sentence and the Dismissal of the Post-Conviction Petition by the Court of Common Pleas of Berks County, Criminal Division, at No. 265 June Sessions 1967.
David R. Eshelman, Asst. Public Defender, for appellant.
Charles M. Guthrie, Jr., Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Larsen and Flaherty, JJ., dissent.
In March of 1968, Howard Olsen was convicted by a jury in Berks County of assault and battery, assault with intent to ravish, indecent assault, kidnapping for extortion, and five separate counts of conspiracy. A motion in arrest of judgment of the convictions of kidnapping and two conspiracy charges was later sustained. Olsen was sentenced, on the convictions not arrested, to imprisonment in a state institution for a total term of six years and eight months to fifteen years, these sentences to run consecutively to a sentence of twenty-five years imprisonment imposed earlier in a federal court following conviction of charges arising from the same incident. No appeal was then entered.
In October 1975, Olsen instituted an action seeking post-conviction relief. After a counseled evidentiary hearing, Olsen was granted permission by the trial court to file an appeal nunc pro tunc limited to the issue of the legality of the sentences. All other relief was denied. Olsen then filed two appeals in the Superior Court challenging the legality of the sentences, as well as the order of the trial court denying post-conviction relief. The appeals were consolidated and a divided Superior Court affirmed. Commonwealth v. Olsen, 247 Pa. Super. 513, 372 A.2d 1207 (1977). We granted allocatur.
Olsen maintains that his waiver of the assistance of counsel at trial and his failure to file "post-verdict motions" were not "voluntary, knowing and intelligent." We conclude an intelligent evaluation of these complaints is impossible from the present record.
It appears that Olsen represented himself at trial, but was given the opportunity of counsel and advice by a public defender at the direction of the court. The transcribed notes of the trial do not disclose the circumstances under which Olsen was permitted and proceeded to represent himself and, hence, it is impossible to determine if Olsen waived his right to counsel effectively. In its opinion
denying post-conviction relief, the hearing court judge, who was also the trial judge, stated "that the defendant [Olsen] came into the courtroom for trial prepared to represent himself and insisted on doing so, although advised by the trial judge that he had a right to have counsel appointed for him if he so desired." This statement is not, without more, adequate to establish an effective waiver of the constitutional right to trial counsel. However, whether this issue has been preserved for review depends upon whether or not Olsen withdrew his post-verdict motion for a new trial knowingly and understandingly. Cf. Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974).
As noted before, Olsen represented himself at trial. Post trial he appeared in court with the public defender as his counsel. Counsel made an oral motion to arrest certain of the convictions. The motion was sustained. Then in answer to questions by his counsel, Olsen told the court that, after discussions with his counsel, he "did not want to proceed with the motions for a new trial," and "I have no desire to file a motion for a new trial." Unfortunately, however, the record does not ...