No. 1853 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Chester County, No. 787C of 1975.
William H. Mitman, Jr., West Chester, for appellant.
William H. Lamb, District Attorney, West Chester, for Commonwealth, appellee.
Spaeth, Wieand and Johnson, JJ. Spaeth, J., concurs in result.
[ 295 Pa. Super. Page 381]
Is counsel ineffective for complying with his client's instructions to withdraw an appeal without first advising the client that the appeal cannot thereafter be revived? The trial court concluded that counsel had not been ineffective when he followed his client's instructions and discontinued the appeal. We affirm.
Billy Dean Collins was tried and convicted of arson. After guilty verdicts had been returned, trial counsel left the Public Defender's staff, but Richard E. Moose, Esquire, undertook representation of Collins. He filed post-trial motions which were dismissed following argument. On November 23, 1977, Collins was sentenced to serve a term of imprisonment of not less than four nor more than ten years. After sentence had been imposed, the sentencing judge
[ 295 Pa. Super. Page 382]
advised Collins that he had a right to appeal and to be represented by counsel for that purpose.*fn1 An appeal to the Superior Court was filed by Moose on December 23, 1977. On or about January 3, 1978, however, Collins wrote to Moose instructing him to "drop the appeal." Thereafter, on January 6, 1978, Moose wrote to Collins advising him that he would comply with the latter's instructions and withdraw the appeal. This was done on May 4, 1978. Two years later, on April 15, 1980, Collins filed a PCHA*fn2 petition alleging that post-trial counsel had been ineffective because he had terminated the appeal. New counsel was appointed, and an evidentiary hearing was held. The hearing court concluded that counsel had not been constitutionally ineffective and denied relief. Collins appealed.
Appellant concedes that he was aware of his right to appeal and to be represented by counsel free of charge. He also concedes that he specifically instructed his attorney to "drop" the appeal which had been filed on his behalf. Ironically, he now alleges that counsel was ineffective for complying with his instructions. Counsel should have remonstrated with him, he argues, and should specifically have advised him that the right of appeal would be lost once the pending appeal was withdrawn.
[ 295 Pa. Super. Page 383]
Appellant's argument is specious. A person convicted of a crime has a right to appeal, and if he is indigent he has the right to file his appeal without expense to himself. He also has a right to have his appeal perfected and prosecuted by counsel appointed by the court and paid for by the state. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 217, 220 A.2d 883, 884 (1966); Commonwealth Page 383} v. Fareri, 271 Pa. Superior Ct. 174, 177, 412 A.2d 632, 633 (1979). A person convicted of a crime is not required to appeal, however, and may waive his rights in connection therewith. Commonwealth v. Maloy, 438 Pa. 261, 263, 264 A.2d 697, 698 (1970); Commonwealth v. Freeman, 438 Pa. 1, 9, 263 A.2d 403, 407 (1970) (Eagen, J., concurring). To constitute an effective waiver, it must appear that there was an "intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); United States ex rel. Boyd v. Rundle, 308 F.Supp. 184, 186, aff'd 437 F.2d 405 (3rd Cir. 1970); Commonwealth v. Mack, 451 Pa. 319, 323-324, 304 A.2d 93, 96 (1973); Commonwealth v. Maloy, supra, 438 Pa. at 263, 264 A.2d at 698; Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762-763 (1968); Commonwealth v. Ross, 289 Pa. Superior Ct. 104, 111, 432 A.2d 1073, 1076 (1981); Commonwealth v. Henderson, 231 Pa. Superior Ct. 190, 192, 331 A.2d 824, 825 (1974). When a defendant "deliberately and knowingly chooses to bypass the orderly state procedures afforded . . . for challenging his conviction, [he] is bound by the consequences of that decision." Commonwealth v. Coleman, 458 Pa. 324, 326, 327 A.2d 77, 78 (1974) quoting Commonwealth v. Wallace, 427 Pa. 110, 113, 233 A.2d 218, 220 (1967); Commonwealth v. Mika, 277 Pa. Superior Ct. 339, 342, 419 A.2d 1172, 1173 (1980).
In the instant case, appellant was aware of his Douglas rights, having been informed of them by the trial court at sentencing. At the PCHA hearing appellant conceded that he understood that he had only thirty days following sentencing in which to file an appeal. Appellant also testified that he had been aware that court appointed counsel had filed an appeal on his behalf. Appellant thus had been in possession of sufficient information to knowingly and voluntarily abandon his right to appeal. It was not essential to a knowing decision to ...