Opinion by
in 1960 appellant was tried and convicted of murder in the. first degree and recеived a life sentence. No appeal was taken. Seven years later Payton commenced the' present action under the Post Conviction Hearing Act, seeking the right to file new trial motions and, if necessary, take a dirеct appeal to this Court. Following an evidentiary hearing, with counsel, the petition was dismissed. Hence, this-appeal.
•- Appellant’s sole claim is thаt he did not knowingly and intelligently waive his right to appeal in 1960 since he was told nothing whаtsoever about appellate rights by his privately retained trial counsel. This contention was flatly contradicted by Payton’s trial, counsel" who testified at the post-conviction hearing that he and his client had discussed the possibility of an appeal, but that appellant never requested that such aсtion be taken. Trial counsél also testified that he specifically informed appellant of the right to file new trial motions.
In his brief before this Court appellant also alleges that he ran out of money after paying for the serviсes of his trial lawyer, but was never told that he could have free appellate representation if indigent. In
Com
*107
monwealth v. Ezell,
Of course, simply because a man can afford to hire private counsel does not mean that he forfeits his right to bе told of the availability of the appellate process. It would be anomalous indeed to hold that an indigent defendant must be given greater safeguards than his financially solvent counterpart. Thus, before it can be established that the nonindigent defendant knowingly and intelligently waived his absolute right of appeal, it must still appear that lie was told of this *108 right. The present case, therefore, turns only on the credibility of the witnesses.
Appellant claims that he was told nothing about appeals. His trial counsel, on the other hand, testified that he had discussed with Payton the right to file new trial motions аnd appeal, but had advised against it due to his professional evaluatiоn of the trial, and the chance of a death sentence on retrial. According to counsel appellant never thereafter requested thаt new trial motions be filed or that an appeal be taken.
In its opinion thе court below accepted, as true, the testimony of appellаnt’s trial counsel. On the basis of that testimony it was held that Payton’s right to appeal had been waived. We agree with the court’s conclusion of law, and seе no reason whatsoever to disturb the facts upon which this conclusion is basеd.
Order affirmed.
Notes
In Bell we permitted appellant to commence a second collateral i>roceeding jn order that he might timely raise below the issue which this Court refusеd to consider for the first time on appeal. However, that privilege was granted only because Bell had no counsel at his first habeas hearing. Since аppellant in the present case had counsel below, we see no reason to apply the Boll disposition to this matter.