No. 305 April Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division of Erie County, at No. 700 of 1975.
William J. Hain, Erie, for appellant.
Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ.
[ 298 Pa. Super. Page 166]
This is an appeal from an order dismissing a Post Conviction Hearing petition. Appellant claims that he did not
[ 298 Pa. Super. Page 167]
knowingly waive his right to appeal the judgment of sentence that was imposed following his conviction for robbery. We agree and therefore reverse and remand with instructions to permit appellant to file an appeal nunc pro tunc.
Appellant was found guilty of robbery by a jury on November 18, 1975. Post-verdict motions were dismissed and on March 3, 1976, appellant was sentenced to 3 1/2 to 9 years in prison. The notes of testimony of the sentencing proceedings were never transcribed because the court reporter left the employ of the county and could not be found.
Appellant's PCHA petition was filed pro se on September 15, 1978, and was later amended. A hearing on the petition was held on February 28 and March 1, 1979. The testimony was by appellant; by the lawyer who had been privately retained by appellant and had represented him at trial and through sentencing; and by the public defender who represented appellant after sentencing. This testimony discloses the following.
Appellant did not recall being told at the time of sentencing either that he had only 30 days within which to appeal, or that if he could not afford a lawyer to represent him on appeal, one would be provided for him. N.T. (2/28/79) at 13. Appellant's trial counsel testified that after the sentencing hearing he told appellant of his right to an appeal. However, he also testified that he told appellant that he would not represent him on the appeal because appellant could not afford to pay him. N.T. (2/28/79) at 4-5. Appellant testified that he understood that only his trial counsel could file an appeal for him. N.T. (2/28/79) at 19. Appellant was then taken to prison to begin serving his sentence and trial counsel sent his file to the Public Defender's office.
The public defender assigned to appellant's case had only been a practicing attorney for a few months, N.T. (3/1/79) at 1, and was not officially a member of the defender's office, N.T. (2/28/79) at 6. He did not visit or write appellant to inform him that he had been ...