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submitted: March 28, 1988.


Appeal from the PCHA July 31, 1987, in the Court of Common Pleas of Washington County, Criminal No. 153 A, B, C January Term, 1970.


Mark F. Geary, Pittsburgh, for appellant.

Paul M. Petro, Assistant District Attorney, Donora, for Com., appellee.

Olszewski, Watkins and Hoffman, JJ. Hoffman, J., concurs in the result.

Author: Olszewski

[ 375 Pa. Super. Page 126]

This case comes before us following the denial of a petition for relief brought pursuant to the Post Conviction Hearing Act, 42 Pa.C.S.A. ยงยง 9541-9551 (hereinafter "PCHA"). Finding no merit in this appeal, we affirm the order.

On March 2, 1972, petitioner Paul Gilly was convicted by a jury of three counts of murder for his participation in the brutal deaths of Jock Yablonski, his wife, and daughter in December of 1969. Following his conviction, petitioner filed a post-trial motion for a new trial, which was denied on September 29, 1972. Sentencing was delayed, however, while Gilly cooperated with the Commonwealth in the prosecution and conviction of two individuals who took part in the murders -- W.A. "Tony" Boyle and William Prater. Finally, on September 3, 1976, Gilly was sentenced to three concurrent life sentences. No motion to modify the sentence was filed, and no direct appeal was taken from the judgment of sentence.

In July of 1982, Gilly filed a PCHA petition claiming he was denied his rights to a fair trial by jury and to the effective assistance of trial counsel. Petitioner also claimed the trial court erred in refusing to grant him a change of trial venue. According to the record, neither the court nor the Commonwealth acted upon the petition. An order was

[ 375 Pa. Super. Page 127]

    entered, however, on November 29, 1984, granting Gilly's request to withdraw the PCHA petition.*fn1

On January 9, 1987, Gilly filed this second PCHA petition raising three claims: (1) the trial court erred in denying the request for a change of venue; (2) the "key-man" jury selection process was not fair; and (3) because the prosecuting attorney, Richard Sprague, failed to abide by his promises to Gilly regarding a sentence recommendation, he should be compelled to fulfill his part of the alleged sentencing agreement. In May of 1987, Gilly filed an amended PCHA petition claiming the sentencing court failed to inform him of his appellate rights as provided by Pa.R.Crim.P. 1405(b).*fn2 A hearing was held on the matter on May 13, 1987. By means of a comprehensive opinion and order dated July 31, 1987, the PCHA petition was denied. This timely appeal followed.

One question is raised for our consideration: because petitioner was not informed of his right to appeal at the time of sentencing, should he be permitted to appeal nunc pro tunc?

An accused enjoys a virtually unqualified right to appeal a judgment of sentence. In determining the scope of this appellate right, this Court has recently stated:

[ 375 Pa. Super. Page 128]

It is axiomatic that in our scheme of justice an accused has the right to appeal his sentence [an accused has an absolute right to appeal pursuant to the Pennsylvania Constitution, Art. V, Sec. 9] and to the assistance of appointed counsel, if indigent, in doing so, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Concomitantly, the accused has the ability to "waive" his right to counsel and to an appeal. As our Supreme Court capsulized in Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971):

In determining whether a defendant has waived a constitutional right it is well settled that the federal standards of waiver first enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) apply. A waiver of a constitutional right must be "an intentional relinquishment or abandonment of a known right or privilege." 304 U.S. at 464, 58 S.Ct. at 1023. The presumption must always be against the waiver of a constitutional right. Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 463-465, 86 L.Ed. 680 (1942). Nor can waiver be presumed in a silent record case. The United States Supreme Court explicitly ruled in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962): " Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." (Emphasis added).

Id. at 516, 82 S.Ct. at 890. Thus this Court is constitutionally bound to place the burden of proving waiver on the Commonwealth. Whether defendant was represented by private or court-appointed counsel, or whether his trial took place before or after the Douglas decision, are distinctions with no legal significance. Commonwealth v. Ezell, [431 Pa. 101, ...

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