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COMMONWEALTH PENNSYLVANIA v. ROBERT JAMES GALLOWAY (10/26/84)

SUPERIOR COURT OF PENNSYLVANIA


October 26, 1984

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT JAMES GALLOWAY, APPELLANT

No. 00366 Harrisburg 1983, APPEAL FROM THE PCHA AUGUST 26, 1983 IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, CRIMINAL NO. CC-46-80

Before Spaeth, P.j., Cirillo and Cercone, JJ. Spaeth, P.j., files a Concurring Memorandum. Cercone, J., files a Concurring Statement.

Per Curiam:

AFFIRMED.

SPAETH, P.J., files a Concurring Memorandum.

CERCONE, J., files a Concurring Statement.

CERCONE, J.:

While I join in the majority's opinion, I wish to further note that this case is clearly distinguishable from Commonwealth v. Haynes, 234 Pa. Superior Ct. 556, 340 A.2d 462 (1975) which appellant relies on

SPAETH, P.J.:

I concur in the judgment, affirming the order of the PCHA court. I write separately to explain how Commonwealth v. Haynes, 234 Pa. Super. 556, 340 A.2d 462 (1975), is distinguishable from this case.

In Haynes the PCHA court denied the petitioner's pro se petition for relief without a hearing. This court reversed and remanded the case to the PCHA court for a full hearing.We stated that waiver could not be presumed because the petitioner did not have the assistance of counsel in deciding to discontinue his appeal. We further viewed the petitioner's filing of a pro se PCHA petition shortly after withdrawing his appeal as an indication that he did not knowingly waive his right to appeal.

Under Haynes the presumption of waiver cannot be applied in this case either. Although appellant was represented by counsel when he withdrew his appeal, he did not have the assistance of counsel in making that decision. Nevertheless, the PCHA court did not rely on the presumption of waiver. Rather, the court held a hearing at which the issue of waiver was fully explored. On the basis of the testimony and evidence produced at the hearing the court concluded that appellant did knowingly waive his right to appeal.

It seems possible -- and the trial court might have found -- that appellant did not know what he was doing but thought that the had to withdraw his appeal in order to discharge his attorney and institute proceedings in the PCHA court to have his bail reinstated. Nevertheless, the issue of what appellant thought was one of credibility and the decision of the PCHA court should therefore be affirmed if supported by the record. In support of the court's decision, the record shows that: appellant was informed of, and initially exercised, his right to appeal; he retained an attorney to represent him on appeal; when he withdrew his appeal he stated that he understood that by withdrawing the appeal he was waiving his right to appeal; he withdrew his appeal in November 1982 and did not file a PCHA petition util February 1983; he made no attempt to fire his attorney and procure new counsel, despite his continuing unhappiness with the attorney's performance; and he knew before he withdrew his appeal that the attorney had filed an appellate brief. The PCHA court's determination that appellant knowingly waived his right to appeal is therefore supported by the record and should not be disturbed on appeal.

19841026

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