submitted: February 11, 1981.
COMMONWEALTH OF PENNSYLVANIA
DEBBIE ROSS A/K/A LOIS BARTLEBAUGH, APPELLANT
No. 718 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. 7803883A
Sallie A. Radick, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Brosky, DiSalle and Shertz, JJ.
[ 289 Pa. Super. Page 106]
Following a jury trial, appellant was found guilty of promoting prostitution and criminal conspiracy and, following denial of post-trial motions, was sentenced to a term of imprisonment. The sentence was stayed pending disposition of an appeal to our court. No appeal was ever filed; consequently, appellant was directed to begin serving her sentence. Appellant thereafter filed a petition under the Post Conviction Hearing Act (PCHA)*fn1 alleging the denial of her right to be represented by a competent lawyer, the denial of her right to appeal through failure to be informed of that right, and the obstruction of her appeal right by a
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state official. A hearing on the petition was held on July 10, 1980; on July 15, 1980, the petition was denied. This appeal followed.
The central issue for our determination is whether appellant was denied her right of appeal. The trial court found that she had waived her right of appeal. We affirm.
Appellant contends that she did not knowingly or voluntarily abandon or fail to exercise her right to appeal but, rather, that she was thwarted in her attempt to exercise her right by her attorney, who failed to take an appeal after being requested to do so. As a result, she argues, she was deprived of effective assistance of counsel.
The record shows that appellant's trial counsel, Mr. DeBroff, had been her attorney for a period of approximately four years, and that the relationship between them had been a good one. At the PCHA hearing, when asked his recollection with respect to whether or not his client wished to take an appeal following the denial of her post-trial motions, Mr. DeBroff stated:
I think, she wanted to take an appeal. In fact, I had indicated to her that there was merit in her doing so, as the questions raised . . . were substantial and in some ways novel . . . . We did discuss that at least on two occasions; one, on the 23rd after the time of sentencing . . . and, secondly, the day thereafter . . .
Attorney DeBroff testified that on both of those occasions, he had told appellant
that she should proceed to the Public Defender's Office to have them or some other counsel of her choice, if she wished, to have them represent her in such appeal, as the only way that I could possible [sic] undertake that job for her would be if she were to be able to pay for the work already done for her on this specific case. She told me on one or another of those two times, I think, the second time, that she would be in. During the time within which the appeal could be taken she would be in the office to
[ 289 Pa. Super. Page 108]
handle the financial arrangements so that if she still continued to move ahead [sic] we could do so.
Q. Did she come into your office?
A. She did not.
Q. Did she at any time contact you or discuss with you her wish in that period?
A. No. At no time during the subsequent month did I get even a telephone call from her.
Q. Did you communicate with her in any manner?
A. I wrote her a letter a few days thereafter*fn2 with a copy to Mr. Lamoreau [a companion of appellant].
The test in Pennsylvania for whether counsel's assistance is deemed constitutionally effective is whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Here, as the Commonwealth argues, Attorney DeBroff did all that could be reasonably expected of him: he discussed with appellant the merits of taking an appeal, advised her of the time limit for filing an appeal and the consequences of not taking an appeal, and recommended that she seek assistance from the Public Defender's Office if she did not have sufficient funds to pay for an appeal.
When asked whether, between the time of conviction and the time of sentencing, she had discussed an appeal with Mr. DeBroff, appellant replied: "No, I just knew that he was going to file the motion." (Emphasis added.) Although the appellant maintained that she had communicated with her
[ 289 Pa. Super. Page 109]
attorney, the trial court found there was "an absence of any communique which even hints that an appeal had been or would be taken unilaterally by counsel."
Analyzing Attorney DeBroff's conduct vis-a-vis that of appellant, we find that Mr. DeBroff's failure to appeal was a direct result of appellant's failure to communicate with him. Instead of just assuming that Mr. DeBroff had filed her appeal, appellant should have taken affirmative steps to effectuate her desire to appeal. We agree with the trial court that the October 29th letter informing appellant of the time limit for appeal required a response by appellant. Here, appellant did not come into Attorney DeBroff's office during the appeal period, nor did she make any attempt to contact him.
The factual situation here reflects the uncertainty surrounding the area of a lawyer's responsibility to his client after conviction. In this regard, the ABA Standards for Criminal Justice are helpful. ABA Standard 4-8.2, titled "Appeal" states:
(a) After conviction, the lawyer should explain to the defendant the meaning and consequences of the court's judgment and defendant's right of appeal. The lawyer should give the defendant his or her professional judgment as to whether there are meritorious grounds for appeal and as to the probable results of an appeal. The lawyer should also explain to the defendant the advantages and disadvantages of an appeal. The decision whether to appeal must be the defendant's own choice. (Emphasis added.)
(b) The lawyer should take whatever steps are necessary to protect the defendant's right of appeal.
ABA Standards for Criminal Justice § 4-8.2 (2d Ed. 1980).
The Commentary to the above standard recognizes the potential, after conviction, for misunderstanding between lawyer and client concerning the action that will be taken by
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each, and submits that "taking whatever steps are necessary to protect the right of appeal" may include "perfecting the appeal, even though arrangements may have to be made for other counsel to represent the defendant before the appellate court." Commentary at 4-108.
We hold, in line with our fellow jurisdictions across the land,*fn3 that, following conviction, trial counsel must, in order to be effective, go one step further in order to protect his client's right of appeal: either by filing the appeal, by recommending to the client other counsel to handle the appeal, or by presenting to the court a motion to withdraw from the case. In the case of withdrawal, the attorney should look for guidance to the Code of Professional Responsibility, and should, of course, immediately notify the client of such action in time for the client to secure other counsel.
As ABA Standard 4-8.2 clearly states, however, the decision whether to appeal must be the defendant's own choice. Therefore, the defendant must take affirmative steps to ensure that his desire to appeal is communicated to his attorney, and that he communicates as well his authorization that the attorney may file an appeal on his behalf. Here, the facts fall short of finding counsel ineffective, since it is not clear whether counsel knew with certainty of appellant's desire to appeal and since appellant took no steps to protect her right of appeal by communicating with her attorney and authorizing him to file an appeal.
Under the circumstances, we find that appellant knowingly and voluntarily waived her right of appeal. In
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order for there to be a proper waiver, "the accused must be aware of all of his rights incident to an appeal, and with such knowledge intentionally abandon or fail to exercise them." Commonwealth v. Maloy, 438 Pa. 261, 263, 264 A.2d 697, 698 (1970). It is without doubt that the right to appeal and the right to assistance of counsel in taking and perfecting an appeal may be waived if such waiver is intelligently and voluntarily made. See Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).
We hold here that appellant did waive her right of appeal as found by the court below. The court's findings in this regard*fn4 are clearly supported by the record, and consequently we will not disturb them. Commonwealth v. Sweitzer, 261 Pa. Super. 183, 396 A.2d 1376 (1978).
Accordingly, we affirm the order of the court below.