Commonwealth v. MageeCommonwealth v. Magee
- Reporters:
- , ,
- Before:
- Roberts
Opinion bx
Mr. Justice Roberts,Appellant Keith Magee was convicted by a jury of first degree murder and sentenced tо life imprisonment. No appeal was tаken. In December 1966 he filed a petition under the Post Conviction Hearing Act, alleging that hе had unconstitutionally been denied his right to appeal. The petition was dismissed without hearing and we reversed. Commonwealth v. Magee, 428 Pa. 186, 236 A. 2d 818 (1968). Upon remand, the heаring court held that he had not been denied his right tо appeal. We reverse.
At the evidеntiary hearing appellant’s original trial counsel testified that he advised against taking an appeal because appellant could get the death penalty on retrial. The hearing judge wrote in his opinion: “[T]he statement of his then counsel, Mr. Petrillo, represents what took place, and henсe, we would find that he knew of his right to appeal, understandingly knew of it, and understandingly knew what he was waiving and what he was doing when he appеared before this Court. For this Court is certain again on the statements made and under the totality of the circumstances, that this defendant knew that if a new trial had been granted him, and he were tried, he could have had assessed against him death in the electric chair, which he admittedly wanted to avoid.”
In Commonwealth v. Littlejohn, 433 Pa. 336, 250 A. 2d 811 (1969), we held that where a defendant was originally sentencеd to life imprisonment, the Commonwealth was сonstitutionally precluded from seeking the death penalty upon retrial. Hence, a decision not to appeal, basеd on fear of what the Commonwealth cоuld not constitutionally do, “cannot, as a mаtter of law, be a knowing and voluntary waiver of the right to appeal.” Id. at 349, 250 A. 2d at 817. See Common *59 wealth v. Stewart, 435 Pa. 449, 257 A. 2d 251 (1969). Since the heаring judge found that appellant did not appeal because of his fear of the dеath penalty upon retrial, * we must now grant him аn appeal as though timely filed. We therеfore remand this record to the court below with directions that the court shall appoint counsel for the purpose of filing and arguing post-trial motions and, if necessary, рrosecuting an appeal.
The ordеr of the Court of Quarter Sessions of Erie County is rеversed and the record is remanded with instructions.
Mr. Justice Cohen concurs in the result. Mr. Chief Justice Bell dissents.
Notes
The hearing court’s opinion and order were filed on June 5, 1969, nearly five months after Littlejohn was decided.