Com. v. Robinson

• Decision Date: 01 February 1980
• Citation: 410 A.2d 744,487 Pa. 541
• Parties: COMMONWEALTH of Pennsylvania v. Robert ROBINSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 744

410 A.2d 744

487 Pa. 541

COMMONWEALTH of Pennsylvania v. Robert ROBINSON, Appellant.

Supreme Court of Pennsylvania.

Submitted Dec. 10, 1979.

Decided Feb. 1, 1980.

[487 Pa. 542] Stephen A. Seidel, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Franklin Noel, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN and FLAHERTY, JJ.

OPINION

NIX, Justice.

Appellant, Robert Robinson, was charged with murder, voluntary manslaughter, involuntary manslaughter, and carrying a concealed weapon arising out of the stabbing death of Ronald Townes in a Philadelphia bar in 1971. Following a trial before a court sitting without a jury on February 23, 1973, appellant was found guilty of voluntary manslaughter. Motions for a new trial and an arrest of judgment were filed by appellant and these motions were denied on December 17, 1973. Appellant was thereupon sentenced to serve a three to twelve year term of imprisonment.

Appellant failed to take a direct appeal of his conviction. Subsequently, he filed a pro se Post Conviction Hearing Act ¹ petition on June 20, 1977. Counsel was appointed for appellant who then filed an amended PCHA petition on October 14, 1977. The PCHA court denied this petition on July 26, 1978 and appellant now seeks review of this adverse ruling.

Appellant argues that he is entitled to a direct appeal Nunc pro tunc because of trial counsel's ineffectiveness in properly perfecting the appeal and that trial counsel was also ineffective for failing to call a crucial witness at trial. Addressing first the assertion that trial counsel was ineffective for failing to perfect an appeal, it must be emphasized that this is not a claim of a denial of Douglas rights. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). The testimony clearly established that appellant was fully advised, on the record, of his right of appeal at sentencing. There is no claim that he did not understand these rights or that he at any point requested trial counsel to file an appeal. Moreover, although appellant testified during the PCHA hearing, his testimony was confined to the second issue raised in this appeal. At no point has appellant asserted that he expressed any desire to trial counsel to appeal his conviction and sentence, nor did he suggest any difficulty in communicating with counsel during the period in which an appeal would have been filed.

The legislature has mandated that, "There is a rebuttable presumption that a failure to appeal a ruling . . . is a knowing and understanding" waiver of the defendant's right to appeal. 19 P.S. § 1180-4(c). The courts of this Commonwealth have steadfastly adhered to this mandate. See e. g., Commonwealth v. LaSane, 479 Pa. 629, 633, 389 A.2d 48, 49 (1978); Commonwealth v. Jones, 477 Pa. 266, 269-70, 383 A.2d 926, 927-28 (1978); Commonwealth v. Lowers, 481 Pa. 534, 537-38, 393 A.2d 33, 35 (1978); Commonwealth v. Nero, 250 Pa.Super. 17, 22, 378 A.2d 430, 433 (1977); Commonwealth v. Eagle, 248 Pa.Super. 267, 375 A.2d 90 (1977); Commonwealth v. Phillips, 248 Pa.Super. 400, 375 A.2d 158 (1977). In this case no attempt has been made to overcome the presumption.

Thus the question must be framed as to whether trial counsel is ineffective for not perfecting an appeal where his client has waived the right of appeal? To state the question is to answer it. Appellant's sister, Mrs. Saunders, testified that she and other members of the family of appellant engaged trial counsel for appellant. ² She stated that trial counsel had promised the family that he would file an appeal on her brother's behalf. ³ Even if we gave credence to her statements, which the hearing court did not, we fail to see how that testimony constitutes ineffective assistance in counsel's representation of his client, appellant. Once the client has knowingly and voluntarily waived an appeal, counsel's failure to file an appeal does not constitute ineffective assistance to the client even though his failure may be a breach of a promise to a third party.

The second allegation of ineffectiveness relates to trial counsel's failure to call Richard Purnell, appellant's brother-in-law, as a witness for the defense during the trial of the case. The PCHA hearing court found and the record supports a finding that, "neither Mr. Purnell nor defendant's sister, who testified at the evidentiary hearing before us, nor the defendant himself, . . ., ever stated or intimated that defendant's trial counsel had been advised that there was an exculpatory eyewitness to the incident." See Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976); Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973).

(H)ad appellant clearly established that he had communicated to his attorney the existence of the two witnesses and his attorney, without investigation, had failed to call them as witnesses, then such conduct, if not explained, would be a relevant circumstance in determining whether appellant was denied effective assistance of counsel. However, the record fails to establish that appellant's attorney was made aware of the possible alibi witnesses. Commonwealth v. Owens, supra at 272, 312 A.2d at 381.

Appellant argues that the statement given by him to the police, which was furnished to counsel and introduced at trial, should have placed trial counsel on notice of Mr. Purnell's potential as a witness for the defense. Appellant relies upon that portion of the statement which indicates, "I was talking to my brother-in-law, Richard Purnell. . . . Ronald Townes (the deceased) walked up to me and . . . ." However, as the learned court below found, this reference in no way suggests that the witness, Purnell, would necessarily be favorable to appellant's position.

During the course of a trial, counsel must make many decisions where this stewardship is called into question, the normal procedure is to evaluate his explanation for the path chosen. Where, as here, counsel is not available to explain his choice of alternatives, we must look to the record to find any reasonable basis for the course of action taken by counsel. We will not assume that counsel acted without a reasonable basis, rather the record must support such a conclusion.

In this case,...