Com. v. Norman

• Decision Date: 29 December 1971
• Parties: COMMONWEALTH of Pennsylvania v. Albert NORMAN, Appellant.
• Court: Pennsylvania Supreme Court

Page 523

285 A.2d 523

447 Pa. 217

COMMONWEALTH of Pennsylvania v. Albert NORMAN, Appellant.

Supreme Court of Pennsylvania.

Dec. 29, 1971.

Fred I. Noch, Public Defender (submitted), Reading, for appellant

Robert L. VanHoove, Dist. Atty., (submitted), Reading, for appellee.

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

OPINION OF THE COURT

ROBERTS, Justice.

Appellant Albert Norman here contests the dismissal of his petition filed pursuant to the Post Conviction Hearing Act ¹ in which he alleged he had been denied his right of appeal. The hearing court refused to hear any testimony on whether Norman knowingly waived his appeal rights, ruling as a matter of law that appellant had finally litigated this question and therefore no hearing was required. For the reasons that follow, we disagree and remand the record to the PCHA court for a hearing on whether appellant knew of his right to appeal and of his right to have counsel appointed to assist him, if he is indigent.

Appellant was tried before a jury and convicted of second degree murder on June 15, 1962. No post trial motions were filed, and on July 5 of the same year he was sentenced to a term of imprisonment of from ten to twenty years. Appellant was represented throughout the trial and sentencing proceedings by counsel retained by his family. No appeal was taken from the judgment of sentence.

Appellant filed a petition for a writ of habeas corpus on June 9, 1965, which was dismissed after a hearing. This Court unanimously affirmed that order on April 18, 1967. See Commonwealth ex rel. Norman v. Stitzel, 425 Pa. 184, 228 A.2d 373 (1967).

Appellant then filed a PCHA petition on June 5, 1967. A hearing was scheduled, but appellant asked for a continuance. The matter was continued indefinitely. ²

Appellant filed a second PCHA petition on November 1, 1968, claiming ineffective assistance of counsel in that he had never been apprised of his right of appeal from the judgment of sentence. Hearing was held on April 2, 1969, at which time the court dismissed his petition, ruling that appellant had finally litigated this issue because our Court had the trial record before us at the time of appellant's habeas corpus appeal. This appeal ensued.

In our recent decision in Commonwealth v. Cannon, 442 Pa. 339, 275 A.2d 293 (1971), we held that absent clear and direct evidence that a petitioner had abused the writ by seeking to litigate his claims in a piecemeal fashion as a means of vexation, harassment, and delay, the failure to raise an issue in a habeas corpus petition filed prior to the effective date of the Post Conviction Hearing Act ³ did not foreclose judicial consideration of the merits of that issue in a subsequent proceeding for at common law the dismissal of a habeas corpus petition was not a bar to a second petition or writ.

Hence, the hearing court was in error in determining that appellant's prior habeas corpus appeal foreclosed any consideration of whether he had been denied his right of appeal from the judgment of sentence. The decision of our Court in that habeas corpus appeal specifically noted that we were not then considering whether appellant had been denied the effective assistance of counsel in the filing and prosecuting of an appeal. See Commonwealth ex rel. Norman v. Stitzel, supra at 185 n. 1, 228 A.2d at 375 n. 1. We therefore conclude the issue was not finally litigated, and no waiver occurred.

Defendant contends that he was denied the constitutional rights of appeal guaranteed by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). He asserts that at the conclusion of his trial he was indigent and unaware of either his right of appeal or his right to court-appointed counsel for the purpose of appeal. This Court has held that in deciding whether Douglas rights have been violated '* * * the burden of demonstrating a waiver of these rights by an indigent defendant where, as here, the record is silent * * * is placed upon the Commonwealth.' Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762 (1968). See also Commonwealth v. Stewart, 430 Pa. 7, 241 A.2d 764 (1968). To the suggestion that this burden would somehow shift because defendant retained private counsel during his trial this Court responded: 'Nor do we think that the requirements of Wilson and Stewart become relaxed simply because appellant was able to afford private trial counsel.' Commonwealth v. Ezell, 431 Pa. 101, 104, 244 A.2d 646, 647 (1968).

These decisions are founded on constitutional principles of unquestioned vitality. Douglas established a defendant's constitutional right of court-appointed counsel if defendant was indigent and his right of appeal. These constitutional rights were given full retroactive application in Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964) (per curiam); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965). Once federal constitutional rights are involved, and once it is clear, as it is from this record, that a particular defendant did not exercise those rights, our inquiry must be whether there was a valid waiver of those constitutional rights.

In determining whether a defendant has waived a constitutional right it is well settled that the federal standards of waiver first enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) apply. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). The waiver of a constitutional right must be 'an intentional relinquishment or abandonment of a known right or privilege.' 304 U.S. at 464, 58 S.Ct. at 1023. The presumption must always be against the waiver of a constitutional right. Glasser v. United States, 315 U.S. 60, 70--71, 62 S.Ct. 457, 463--465, 86 L.Ed. 680 (1942). Nor can waiver be presumed in a silent record case. The United States Supreme Court explicitly ruled in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962):

'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' (Emphasis added).

Id. at 516, 82 S.Ct. at 890. Thus this Court is constitutionally bound to place the burden of proving waiver on the Commonwealth. Whether defendant was represented by private or court-appointed counsel, or whether his trial took place before or after the Douglas decision, are distinctions with no legal significance. Commonwealth v. Ezell, supra; Commonwealth ex rel. Stevens v. Myers, supra.

There is no indication on the record now before us that appellant was ever informed either by the court or counsel of his right of appeal. Normally, we would find the Commonwealth has failed to meet its burden of proof and remand for the filing of post trial motions from the judgment of sentence as though timely filed, and if appellant lacked sufficient funds, he would be afforded free counsel to argue the motions and assist him in prosecuting an appeal, if necessary. See, e.g., Commonwealth v. Herge, 436 Pa. 542, 549--551, 260 A.2d 787, 790--792 (1970).

However, in the instant case the hearing court did not permit any testimony on the merits of appellant's petition, erroneously ruling that the issue had been finally litigated. We accordingly must remand to the PCHA court to allow the Commonwealth an opportunity to introduce evidence that appellant knew both of his right of appeal and of his right to have counsel appointed to assist him on appeal. We emphasize that the burden of proof on this issue rests on the Commonwealth. See Commonwealth v. Wilson, supra.

We conclude by noting that the Commonwealth's attorneys have been woefully dilatory in their duties in this case. Although the present appeal was submitted for our consideration on December 2, 1970, we have yet to receive a brief from the Berks County District Attorney's Office in this matter. While we sympathize with the workload of any public attorney's office, as we stated in Commonwealth v. Cannon, supra:

"We take this occasion to point out, however, that we will not tolerate the practice by some public appellees, which we have found to be all too common, of postponing our consideration of appeals . . . by the expedient of neglecting to file timely briefs. The court cannot permit itself to be placed in the position where it must either perform the research which should be done by the public representative . . . or accept petitioner's contentions and release him on bail pending appeal. We have on other occasions directed prosecuting attorneys to show cause why they should not be suspended from practice in this court for such inexcusable neglect. We will do so in the future."

Id. at 343 n. 3, 275 A.2d at 295 n. 3 (quoting United States ex rel. Boyd v. Rundle, 437 F.2d 405, 406 (3d Cir. 1970)). Accord, Commonwealth v. Ditzler, 443 Pa. 73, 277 A.2d 336 (1971).

Record is remanded for proceedings consistent with this opinion.

Editor's Note: See Commonwealth v. Jones, Pa., 286 A.2d 892 (1971).

COHEN, J., did not participate in the decision of this case.

POMEROY, Justice (concurring and dissenting).

I concur with the judgment of the Court that this case must be remanded for an evidentiary hearing to determine whether or not appellant has waived his right to appeal from his 1962 conviction. Commonwealth v. Cannon, 442 Pa. 339, 275 A.2d 293 (1971).

I cannot agree, however, that an appellant, represented at trial by privately retained counsel, should be afforded the protections of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) on the mere allegation in his Post Conviction Hearing Act petition that he was indigent at the conclusion of his trial. ¹ In the situation where appellant was represented at trial by court-appointed counsel, there has been a court determination that he was...