No. 2344 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 532-533, June Term, 1961.
Margaret T. McKeown Murphy, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Montemuro and Montgomery, JJ. Wickersham, J., files dissenting statement.
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This appeal follows the August 4th, 1982, Order of the Court of Common Pleas of Philadelphia County granting appellant an appeal nunc pro tunc from the Order denying his first PCHA Petition.
Appellant argues in this appeal that he received ineffective assistance of counsel when his trial counsel failed to inform him of his right to appeal his 1964 sentence for robbery and conspiracy and that he is entitled to a new trial on grounds of various constitutional violations which occurred during the course of the trial on those charges. Based on our findings that the Commonwealth failed to meet its burden of proving a knowing and voluntary waiver of direct appeal rights and that a tacit admission was improperly used against appellant at his trial, we reverse and remand for a new trial.
We shall set forth the tortuous and extensive history of this case for two reasons: first, so that our disposition of this appeal will be more easily understood and second, to demonstrate why the citizens of this Commonwealth, with understandable disbelief and consternation, are often times heard to complain of a criminal justice system so overburdened with technicalities that finality of judgment is at best an illusive goal.
Twenty-three (23) years ago on the afternoon of May 25, 1961, Mr. Lucius Hart, an elderly gentleman, sixty-eight (68) years of age was robbed of approximately fifteen thousand ($15,000.00) dollars in cash and checks. He was employed as a messenger for the C.A. Rowell Department
[ 339 Pa. Super. Page 300]
Store which was located at the corner of Germantown and Chelten Avenues in the city of Philadelphia and at the time of the robbery he was en route to the Girard Bank to make a deposit. As Mr. Hart was crossing Woodlawn Street, appellant and his co-defendant, John McManus, approached him from the side and after one of them said, "I'll take this," he was forcibly relieved of the canvass bag which contained the cash and checks. John McManus subsequently pleaded guilty to the crime. The appellant was arrested on May 25, 1961 and charged with aggravated robbery and criminal conspiracy.
On May 29, 1962, following a trial by jury before the Honorable Harold D. Saylor (now deceased), appellant was convicted of all charges. Post-verdict motions were filed and on May 2, 1963, Judge Saylor granted appellant's motion for a new trial.
Appellant retained new counsel, David N. Savitt, Esquire, now a Judge of the Court of Common Pleas of Philadelphia County, and was retried on December 4, 1963, before the Honorable Victor Blanc (now deceased) sitting without a jury. He was again convicted. Appellant filed a timely motion for a new trial and arrest of judgment. On January 16, 1964, Judge Blanc sentenced appellant to three (3) years probation on the charge of aggravated robbery and suspended sentence on the charge of conspiracy. No appeal was taken from this judgment of sentence.
On January 16, 1967, a probation violation hearing was held before the Honorable Thomas M. Reed (now deceased), in response to a warrant requested on September 1st, 1966, for technical violations, and Judge Reed revoked appellant's probation and imposed three (3) more years probation to begin January 16, 1967. Appellant was represented by counsel and no appeal was taken from Judge Reed's order.
On August 8, 1967, appellant was arrested and charged with the crime of burglary and on January 20, 1969 was convicted of this offense in a non-jury trial before the Honorable Charles J. Margiotti, who imposed a sentence of
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six (6) to twenty-three (23) months in the Philadelphia County Prison.
On April 25th, 1969, a second probation revocation hearing was held before Judge Reed, who again revoked appellant's probation. On May 29, 1969, Judge Reed imposed a sentence of eight (8) to twenty (20) years. Appellant was represented by counsel and no appeal was taken from Judge Reed's sentence of imprisonment. Robert Simone, Esquire, represented appellant.
On November 19, 1969, appellant filed his first petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. Appellant was represented by Robert Simone, Esquire, who alleged the following as reasons for post-conviction relief:
1. The introduction of evidence obtained pursuant to an unlawful arrest;
2. The introduction into evidence of a statement obtained in the absence of a lawyer at a trial when representation ...