Appeal, No. 198 | Pa. | Oct 9, 1969
Lead Opinion
Opinion by
This case involves the narrow question whether appellant is entitled to a hearing under the Post Conviction Hearing Act. On October 14, 1947, after a jury trial, appellant was convicted of murder in the first degree and was sentenced to life imprisonment. Post trial motions were filed and then withdrawn. Appellant now claims that although he knowingly and voluntarily agreed to the withdrawal of the post trial motions, he did not know that this would also waive his right to appeal. The court below, relying on the post trial record colloquy, which discloses that appellant stated that he voluntarily agreed to the withdrawal of the motions, dismissed appellant’s petition without a hearing.
We agree with appellant that a hearing is necessary. Appellant has raised a factual issue the deter
The order of the Court of Oyer and Terminer of Lackawanna County is reversed and the case is remanded for proceedings consistent with this opinion.
Concurrence Opinion
Concurring Opinion by
I concur in the conclusion that Gilmer is entitled to a hearing on his petition for post conviction relief, but I desire “to enter a caveat”.
Gilmer had an absolute right to appeal from his conviction and sentence, and if he was indigent at the pertinent time, he was entitled to the assistance of free counsel in perfecting and prosecuting an appeal. Commonwealth v. Wilson, 430 Pa. 1" court="Pa. Super. Ct." date_filed="1968-05-03" href="https://app.midpage.ai/document/commonwealth-v-wilson-6259453?utm_source=webapp" opinion_id="6259453">430 Pa. 1, 241 A. 2d 760 (1968). The hearing in the court below should be directed to a determination of whether or not Gilmer intelligently and intentionally abandoned or waived these rights. Of course, he could not “intelligently” abandon or waive either right unless he completely understood what the right was. Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1" court="Pa." date_filed="1965-09-29" href="https://app.midpage.ai/document/commonwealth-ex-rel-stevens-v-myers-1923511?utm_source=webapp" opinion_id="1923511">419 Pa. 1, 213 A. 2d 613 (1965).
In Commonwealth v. Wilson, supra, in speaking of a convicted criminal defendant’s right to appeal and of his right to the assistance of counsel in the further
Finally, it is my view that we are not dealing with a “silent trial record” in the instant case and that there is at least sufficient evidence to show a prima facie waiver of the rights involved. Under such circumstances, the burden of proof in the hearing below should be upon Gilmer. See and compare, Commonwealth ex rel. Fink v. Rundle, 431 Pa. 264, 244 A. 2d 648 (1968).