214 Pa. Super. 142 | Pa. Super. Ct. | 1969
Dissenting Opinion
Dissenting Opinion by
In 1964, appellant was convicted of Robbery after a jury trial where he was represented by privately retained counsel.
After judgment of sentence was entered, a motion for a new trial was argued by appellant’s trial counsel and dismissed by the lower court en banc. No timely appeal was taken from this dismissal. On July 19, 1967 appellant filed the present action under the Post Conviction Hearing Act. The petition was dismissed without a hearing by the lower court but this Court, in Commonwealth v. Beard, 211 Pa. Superior Ct. 756, 237 A. 2d 616 (1968), remanded the record to the lower court with instructions to “hold an evidentiary hearing, with counsel, in order to determine whether appellant knowingly and intelligently waived his right to counsel on appeal. If the court finds that the right to counsel on appeal was not waived, appellant shall be permitted to appeal nunc pro tunc and counsel shall be appointed to represent appellant in prosecuting that appeal.”
At the hearing held pursuant to this order the lower court found that appellant had intelligently waived his right to counsel on appeal and dismissed his petition. This appeal which attacks that finding follows.
The only witnesses at the evidentiary hearing below were appellant and his trial counsel.
The trial counsel testified that he had informed appellant, by letter, that he was in the process of perfecting an appeal to this court. Counsel abandoned the case, and never perfected the appeal, however, because he was neither reimbursed for expenses nor paid his
But, by this time, the statutory time for taking an appeal to this court had lapsed and the trial counsel withdrew formally from the case. It is evident from this record that appellant was without ready funds at the time he thought his counsel was perfecting his appeal to this court. Also, it is clear that his counsel abandoned his appeal because of his indigency. Finally, there is no on-the-record indication that appellant was ever informed that he was entitled to have a free counsel to assist in his appeal if he were indigent.
Therefore, in my view, Commonwealth v. Ritchey, 481 Pa. 269, 245 A. 2d 446 (1968), requires that we find that appellant never knowingly waived his right to counsel on appeal. “[A]s a matter of law there
I would vacate the dismissal of the petition below and allow an appeal on the merits nunc pro tunc.
Lead Opinion
Opinion
Order affirmed.