Com. ex rel. Newsome v. Myers

• Decision Date: 24 June 1966
• Citation: 422 Pa. 240,220 A.2d 886
• Parties: COMMONWEALTH of Pennsylvania ex rel. Vernon L. NEWSOME v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 886

220 A.2d 886

422 Pa. 240

COMMONWEALTH of Pennsylvania ex rel. Vernon L. NEWSOME v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.

Supreme Court of Pennsylvania.

June 24, 1966.

Vernon L. Newsome, in pro. per.

LeRoy S. Zimmerman, Dist.Atty., and Leslie B. Handler, Asst.Dist.Atty., Harrisburg, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

ROBERTS, Justice.

In 1963, appellant was convicted in a trial by jury of murder in the second degree and sentenced to a term of imprisonment of 10 to 20 years. Throughout the proceedings, appellant, an indigent, was represented by court appointed counsel. No post trial motions were filed or appeal taken from the judgment of conviction or sentence.

Subsequently, appellant filed a petition for a writ of habeas corpus in the court below challenging his conviction, inter alia, on the ground that he was denied his constitutional right to the assistance of counsel on appeal. ¹ The petition was dismissed and this appeal followed. For the reasons hereinafter stated, we are of the view that the order of the court below must be vacated and the record remanded for a hearing in light of the decisions of this Court in Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A.2d 811 (1966); Commonwealth ex rel. Branam v. Myers, 420 Pa. 77, 216 A.2d 89 (1966); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).

Appellant alleges in his petition that following his conviction, he requested trial counsel to prosecute an appeal, but that counsel refused to do so on the ground that his appointment did not include representation of appellant on appeal. ² He further contends that lack of knowledge and indigency prevented him from proceeding on his own or from retaining other counsel to press his appeal.

As we have previously stated, the right of an indigent defendant to the assistance of counsel on an appeal as of right, as set forth in the decision in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), includes, as a necessary incident, the right to the assistance of counsel in the task of taking and perfecting such an appeal. Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 158, 218 A.2d 811, 812 (1966), and cases cited therein. Appellant, having been convicted of murder, had an absolute right to appellate review by this Court. Act of February 15, 1870, P.L. 15, § 1, 19 P.S. § 1186; Commonwealth ex rel. Cunningham v. Maroney, supra at 159, 218 A.2d at 812. Under our previous decisions, appellant's failure to take an appeal within the time allowed by law may not preclude the present assertion of that statutory right if such failure resulted from an unconstitutional deprivation of the assistance of counsel. Commonwealth ex rel. Cunningham v. Maroney, supra; Commonwealth ex rel. Branam v. Myers, 420 Pa. 77, 216 A.2d 89 (1966); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).

The record reveals that prior to the instant petition, appellant petitioned the court below to permit an appeal nunc pro tunc. Counsel was appointed to represent appellant in the matter. However, after considering the trial record, counsel informed the court that in his opinion there was no ground which would merit an appeal and requested permission to withdraw from the case. Permission was granted and the petition dismissed.

In dismissing the present petition, the court below relied on the conclusion of counsel appointed on the nunc pro tunc petition that an appeal was not warranted. The court concluded, therefore, that appellant had been afforded his day in court and that no deprivation had occurred by reason of his failure to obtain appellate review. We do not agree.

It is not our impression that the Douglas decision was intended merely to replace counsel for the courts as a screen to determine which cases have sufficient merit to warrant the appointment of counsel for the prosecution of an appeal. In our view, the mere fact that counsel did not consider appellant's prospects on appeal as favorable was not of itself sufficient grounds for holding that appellant's constitutional right to the assistance of counsel on appeal had been fully satisfied. That right embodies more than the right to the assistance of counsel in "meritorious cases"; it embodies the right to representation on appeal if the defendant so desires, whatever the prospects of success may appear to be to the court or counsel. As this Court pointed out in Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 160, 218 A.2d 811, 813 (1966), "[h]ad appellant the funds with which to retain counsel, we do not doubt that he would have been able to indulge his grievances, real or fanciful, on appeal. Appellant was entitled to no less."

Accordingly, we are unable to conclude that appellant may be foreclosed from exercising his constitutional right to representation on appeal merely on the assurance or opinion of counsel that there are no grounds to warrant appeal. Cf. Commonwealth ex rel. Cunningham v. Maroney, supra. The right to such assistance, however, as is the case with all constitutional rights, may, under appropriate circumstances, be waived. Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 76, 215 A.2d 637, 640 (1966); cf. Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1964); Commonwealth ex rel. Johnson v. Maroney, 416 Pa. 451, 453-454, 206 A.2d 322, 323 (1965). Therefore, if appellant waived his right to the assistance of counsel in securing appellate review, his failure to take and...