Com. ex rel. Scoleri v. Myers
| Decision Date | 04 January 1967 |
| Citation | 423 Pa. 558,225 A.2d 540 |
| Parties | COMMONWEALTH of Pennsylvania ex rel. Anthony SCOLERI, Appellant, v. David N. MYERS, Superintendent, State Correctional Institutional, Graterford, Pennsylvania. |
| Court | Pennsylvania Supreme Court |
Edward J. Morris, Philadelphia, for appellant.
Alan J. Davis, Asst. Dist. Atty., Philadelphia, for appellee.
Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
On September 30, 1964, the appellant, Anthony Scoleri, was convicted by a jury of murder in the first degree and punishment was fixed at death. A motion for a new trial was argued before the court en banc on May 24, 1965. It was dismissed July 26, 1965, and on the same day sentence was imposed as the jury directed. No appeal was entered from the judgment. 1
On October 15, 1965 (81 days after judgment of sentence), Scoleri instituted this action in habeas corpus contending that he was denied due process of law in connection with his right to appeal, particularly that he had been denied his constitutional right to the assistance of counsel for 'the purpose of taking an appeal.' After hearing, the trial court dismissed the proceedings. An appeal from that order is now before us.
Throughout the trial, during argument of the post trial motion and also the sentence proceeding, Scoleri was represented by one John Rogers Carroll, Esq., of the Philadelphia bar, who is recognized as an experienced and competent advocate. Carroll was retained by Scoleri's sister, Margaret Sbraccia, who promised to pay a fee of $5000. which was to cover only his services at trial. Two thousand dollars of the agreed amount was paid; the balance was not. At the time of argument for a new trial below, Carroll said to Mrs. Sbraccia, 'Look, you haven't done what you promised to do, I am not going on with this thing.' After the imposition of sentence, because he had not received the balance of his fee, Carroll did nothing further on behalf of his client.
Carroll did not inform the court of his intentions or request permission thereof to withdraw from the case. 2 Neither did he ever inform Scoleri personally of his 'withdrawal' or intention not to file an appeal. It further appears that he did not at any time discuss with Scoleri the prescribed time limit for filing an appeal, or in fact communicate with him or any member of his family in any manner following the day sentence was imposed.
Scoleri, 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. See also, Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966). He also had the constitutional right to the assistance of counsel in perfecting and prosecuting such an appeal. Commonwealth ex rel. Newsome v. Myers, supra, and Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A.2d 811 (1966). However, whether or not an appeal was to be filed and prosecuted was solely for Scoleri's decision. It could be intentionally and knowingly abandoned. Further, his right to the assistance of counsel in the filing and prosecuting of an appeal could be waived, if done so intelligently and understandingly. Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966). But if he did not intentionally abandon his right to appeal, or if an intelligent and understanding waiver of his right to the assistance of counsel for this purpose were not effected, he cannot now be precluded from asserting these rights, even though the statutorily prescribed period for filing an appeal has run. See, Commonwealth ex rel. Cunningham v. Maroney, supra.
An examination of the record leaves no doubt but that Scoleri knew of his right to appellate review, and also was aware that the court would appoint counsel to file and prosecute an appeal on his behalf if he were without the means and funds to personally retain counsel to do so. Scoleri was not without experience in this regard. He had twice previously been convicted of first degree murder for the same killing, and in each instance prosecuted appeals to this Court. See, Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960), and 415 Pa. 218, 202 A.2d 521, 203 A.2d 319 (1964). Proceedings challenging the validity of the first conviction and sentence were also prosecuted in the federal courts. See, Scoleri v. State of Pennsylvania, 364 U.S. 849, 81 S.Ct. 93, 5 L.Ed.2d 72 (1960), and United States ex rel. Scoleri v. Banmiller, 310 F.2d 720 (3 Cir. 1962). During the first trial he was represented by counsel appointed by the court. During the post first trial proceedings, the second trial and subsequent appeal, he was represented by self-retained eminent counsel.
Despite Scoleri's knowledge of his right to appellate review and to have court-appointed counsel file and prosecute the appeal if he were indigent, he cannot now be deemed to have abandoned and waived his rights in this respect if he honestly and in good faith believed that his trial counsel, Carroll, would file such an appeal on his behalf; and, acting on this reliance he failed to take further steps to safeguard...
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