420 Pa. 72 | Pa. | 1966
Opinion bt
In December 1962, appellant, Harvey Robinson, was arrested in the City of York, Pennsylvania, in connection with the slaying of Marlene Perez. He was subsequently indicted and charged with her murder.
Because of his indigency, Robinson secured court appointed counsel to, represent him and entered a plea of not guilty. Brought to trial in May 1963 in the Court of Quarter Sessions of York County, he was convicted of voluntary manslaughter and sentenced to imprisonment for a term of 6 to 12 years. No post trial motions were filed and no appeal was taken from the judgment of sentence. - - -
Subsequently, Robinson challenged his conviction collaterally by a petition for a writ of habeas corpus in the court below. His petition was dismissed without a hearing and this appeal followed.
In his petition for habeas corpus, Robinson alleged a number of trial errors which the court below refused
In seeking relief, Robinson asserts that trial counsel, at the conclusion of the case, declined to undertake an appeal. He further asserts that, while imprisoned, he was without funds or knowledge to perfect an appeal absent such assistance. Thus, Robinson contends, although entitled to appellate review as of right,
Thus, if Robinson remained indigent at the conclusion of his trial and if he did not waive his right to such assistance, he was constitutionally entitled to the appointment of counsel to prosecute his appeal. Moreover, the right to the assistance of counsel on appeal necessarily includes the right to such assistance . in the critical task of taking and perfecting an appeal. See, e.g., United States ex rel. Cooper v. Reincke, 333 F. 2d 608 (2d Cir.), cert. denied, 379 U.S. 909, 85 S. Ct. 205 (1964); Puckett v. State of North Carolina, 343 F. 2d 452 (4th. Cir. 1965); Magee v. Peyton, 343 F. 2d 433 (4th Cir. 1965); Pate v. Holman, 341 F. 2d 764 (5th. Cir.), modified on other grounds, 343 F. 2d 546 (1965); Chase v. Page, 343 F. 2d 167 (10th Cir. 1965); Commonwealth ex. rel. Stevens v. Myers, 419 Pa. 1, 213. A. 2d 613 (1965).
On the present record, however, we are unable to determine the merits of Robinson’s claim. Under such circumstances, our only recourse is to remand the case to the court below with directions to hold an evidentiary hearing at which time the circumstances of Robinson’s failure to take an appeal will be fully explored.
If the habeas corpus court should conclude, following such hearing, that no denial of Robinson’s constitutional rights occurred, it shall enter an order dismissing the petition. However, in the event the court determines that his constitutional right to the assistance of counsel on appeal was infringed, it shall enter an order to that effect and transfer the record to the Court of Quarter Sessions of York County. Upon such transfer, the Court of Quarter Sessions of York County shall enter an order authorizing appeal from the judgment of sentence and for the appointment of counsel for such appeal.
The order of the Court of Common Pleas of York County is vacated and the record remanded for proceedings consistent with this opinion.
Robinson’s principal allegations deal with the sufficiency of the evidence, the admissibility of certain evidence, and the charge of the trial court. We do not presently express any view with regard to the merits of these allegations beyond the conclusion that on the record of this case, they do not individually or collectively amount to such error as is cognizable on habeas corpus.
See Commonwealth ex rel. Rivers v. Myers, 414 Pa. 439, 443, 200 A. 2d 303, 305, cert. denied, 379 U.S. 866, 85 S. Ct. 135 (1964); Commonwealth ex rel. Johnson v. Rundle, 411 Pa. 497, 504-05, 192 A. 2d 381, 384 (1963); Commonwealth ex rel. Levine v. Fair, 394 Pa. 262, 285, 146 A. 2d 834, 846 (1958); Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141, 144, 137 A. 2d 236, 238 (1958).
Act of February 15, 1870, P. L. 15, §1, 19 P.S. §1186.
In eliciting this contention, we have read Robinson’s pro se petition with the required “measure of tolerance.” Cf. Wright v. Dickson, 336 F. 2d 878, 881 (9th Cir. 1964), citing Pike v. Dickson, 323 F. 2d 856, 857 (9th Cir. 1963), quoting from United States v. Glass, 317 F. 2d 200, 202 (4th Cir. 1963). See also Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 532 n.6, 204 A. 2d 446, 448 n.6 (1964).
The parties have their usual right of appeal from the order of the court below.