Com. v. Mumford

• Decision Date: 01 July 1968
• Parties: COMMONWEALTH of Pennsylvania v. Timothy MUMFORD, Appellant.
• Court: Pennsylvania Supreme Court

Page 440

243 A.2d 440 430 Pa. 451 COMMONWEALTH of Pennsylvania
v.
Timothy MUMFORD, Appellant. Supreme Court of Pennsylvania. July 1, 1968.

[430 Pa. 453]

Page 441

Herman I. Pollock, Defender, Philadelphia, Melvin Dildine, Chief, Appeals Div., for appellant.

Arlen Specter, Dist. Atty., Philadelphia, Michael J. Rotko, Chief, Appeals Div., Asst. Dist. Atty., Roger F. Cox, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., for appellee.

[430 Pa. 452] Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

[430 Pa. 453] OPINION OF THE COURT

ROBERTS, Justice.

Appellant was found guilty, in 1945, of murder in the first degree and sentenced to life imprisonment. This verdict and sentence were imposed after Mumford had changed his plea from not guilty to guilty at the conclusion of the Commonwealth's case. Although no direct appeal was taken, the present petition represents appellant's third attempt at collateral relief. In 1965 he commenced a state action in habeas corpus, without the assistance of counsel, in which he alleged only that a coerced confession had been used by the Commonwealth. Having lost below, Mumford appealed to this Court which held his confession voluntary, Commonwealth ex rel. Mumford v. Cavell, 423 Pa. 280, 223 A.2d 852 (1966). Appellant next brought another hand drawn habeas action in the federal courts, again alleging the Commonwealth's use of an involuntary confession. He lost there too, but decided to take no appeal to the Third Circuit Court of Appeals. Now, in his present Post Conviction Hearing Act petition, appellant alleges that he was never told of his right to direct appeal or to have appellate counsel as required by Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Accordingly, he seeks the right to appeal nunc pro tunc. ¹

[430 Pa. 454]

Page 442

Although Mumford was given counsel for this petition, as well as an evidentiary hearing, he was not given relief. It was the position of the court below that appellant 'knowingly and intelligently waived his right of appeal.' However, on the record before this Court, we cannot agree that such a waiver has been shown. In Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), we recently held that where, as here, the trial record is silent on this issue, the Commonwealth has the burden to show not only that a defendant was told, or knew, of his absolute right to appeal, but also that he knew he could have counsel for this appeal, and if indigent, that he could have free counsel. The short, eight page, post conviction hearing record in the present case, if nothing else, demonstrates that the Commonwealth has not met its burden.

The only testimony was that of Mumford himself. Although he admitted learning of the right to appeal from a fellow inmate, it was never shown that appellant possessed such knowledge immediately after trial when he could have filed new trial motions and/or taken his direct appeal. The only evidence produced by the Commonwealth (and even this comes to our attention not through the hearing below, but only through citation in the...