Commonwealth v. Fareri

• Decision Date: 19 October 1979
• Citation: 412 A.2d 632,271 Pa.Super. 174
• Parties: COMMONWEALTH of Pennsylvania v. Peter A. FARERI, Appellant.
• Court: Pennsylvania Superior Court

412 A.2d 632

271 Pa.Super. 174

COMMONWEALTH of Pennsylvania v. Peter A. FARERI, Appellant.

Superior Court of Pennsylvania.

October 19, 1979

Submitted March 23, 1979.

Reargument En Banc Denied March 10, 1980.

David L. Pollack, Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., Philadelphia, for Commonwealth appellee.

Before CERCONE, President Judge, and WATKINS and HOFFMAN, JJ.

HOFFMAN, Judge:

Appellant contends that his counsel was ineffective for not appealing (1) his judgment of sentence for burglary and possession of burglary tools and (2) a subsequent order revoking probation and imposing a sentence of total confinement. We agree and accordingly, reverse the order denying relief under the Post Conviction Hearing Act (PCHA) ^[1] and allow appellant to file his appeals nunc pro tunc.

On August 1 1972, appellant was convicted of burglary and possession of burglary tools. The lower court denied his post-trial motions and sentenced him to six months to two years imprisonment and five years probation. No direct appeal was taken. On February 2, 1977, the lower court revoked appellant's probation and sentenced him to two to five years imprisonment. No direct appeal was filed. On May 19, 1977, appellant filed a PCHA petition, ^[2] alleging that the Defender Association of Philadelphia, which represented him throughout all stages of his burglary and possession trial and his probation revocation hearing, was ineffective for not perfecting direct appeals. On April 26, 1978, at the hearing on his PCHA petition, appellant testified that following both his 1972 conviction and sentence and his 1977 revocation of probation and sentence, he asked the public defender who was representing him to file appeals. In support of his testimony concerning the second appeal, appellant produced correspondence from the Defender Association. In a letter to appellant dated February 10, 1977, the chief of the appeals division of the Defender Association stated that his office would not file an appeal because such appeal would clearly not be successful. He further informed appellant that he had an absolute right to file an appeal and to the representation of counsel, and enclosed forms which appellant could complete and file to perfect an appeal. Appellant testified that he wrote back to the Defender Association, stating that he did not know what to do with the appeal papers. Appellant further testified that the chief of appeals replied, in a letter dated March 29, 1977, to inform appellant that filing an appeal was up to him. The Commonwealth presented no evidence. The lower court denied relief, and this appeal followed.

An indigent defendant has a constitutional right to the assistance of counsel to prosecute his appeal, and this right includes the right to such assistance in the task of taking and perfecting an appeal. Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966); Commonwealth v. Haynes, 234 Pa.Super. 556, 340 A.2d 462 (1975); Commonwealth v. Peake, 210 Pa.Super. 133, 231 A.2d 908 (1967). The right to the assistance of counsel on appeal "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 the court or counsel." Commonwealth ex rel. Newsome v. Myers, supra at 243, 220 A.2d at 888. An indigent defendant can waive his right to the assistance of counsel for the perfection and taking of an appeal "if that waiver constitutes 'an intentional relinquishment or abandonment of a known right.' " Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762 (1968) (quoting Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 218, 220 A.2d 883, 884 (1966); Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 160, 218 A.2d 811, 813 (1966)). The Commonwealth has the burden of demonstrating a waiver of these rights by a preponderance of the evidence. Commonwealth v. Wilson, supra.

In Commonwealth v. Peake, supra, the appellant testified that he urged his trial counsel, a voluntary defender, to take an appeal, and trial counsel testified that he told appellant that there were no grounds for an appeal and that appellant should contact the prison social worker to obtain the necessary forms if he wanted to appeal. This Court held that there could not be a finding of waiver "(i)n light of the possibility that petitioner abandoned his appeal because of a misimpression fostered by his trial counsel." 210 Pa.Super. at 136, 231 A.2d at 909.

In the instant case, the appellant's testimony that he requested his trial counsel to file an appeal after the 1972 conviction and sentence was uncontradicted. Because the Commonwealth introduced no evidence to show that appellant waived his right to appeal and to the assistance of counsel, it did not meet its burden of demonstrating that appellant's failure to appeal was " 'an intentional relinquishment or abandonment of a known right.' " Commonwealth v. Wilson, supra. Accordingly, we hold that appellant is entitled to an appeal nunc pro tunc.

Concerning appellant's failure to appeal the 1977 order revoking his probation and imposing sentence, the record clearly reveals that (1) appellant asked his counsel to appeal, but (2) the Defender Association refused to file an appeal, believing the case lacked merit. Because appellant was entitled to the assistance of counsel to assist in the perfecting of an appeal, he did not waive his right to appeal when he did not file the forms the Defender Association sent him. There is no evidence to support the lower court's finding that the Commonwealth met its burden of demonstrating that appellant waived his appeal rights. Thus, on remand appellant must be allowed thirty days to file direct appeals nunc pro tunc from both the 1972 judgment of sentence and the 1977 order revoking probation and imposing sentence.

Reversed and remanded.

CERCONE President Judge, files a dissenting opinion.

CERCONE, President Judge, dissenting:

The question presented is whether at a PCHA ^[1] hearing petitioner's trial and revocation counsel could be found ineffective in failing to perfect direct appeals from both petitioner's initial judgment of sentence and a subsequent order entered after a revocation hearing, revoking probation and imposing judgment of sentence on petitioner's original conviction. The Majority, without explanation or justification, proclaims that both trial and revocation counsel were ineffective for failing to file direct appeals, and accordingly, grants petitioner the right to file his direct appeals nunc pro tunc. The Majority, however, errs when it reasons "(b)ecause the Commonwealth introduced no evidence to show that appellant waived his right to appeal and to the assistance of counsel," that prior counsel were necessarily ineffective in failing to perfect direct appeals despite petitioner's apparent requests that they do so. To the contrary, applying the settled standard for determining whether an accused has been denied the effective assistance of counsel compels us to conclude that petitioner's present collateral attack on his conviction must fail; petitioner's PCHA counsel has not only failed to show that any claims which petitioner may have raised on direct appeal were of "arguable merit," but also has failed to even indicate in what respects trial and revocation counsels' decisions not to appeal lacked a reasonable basis.

I. Ineffective Assistance of Counsel

In evaluating petitioner's contention that both of his counsel were ineffective for failing to perfect direct appeals after being requested to do so, the Majority departs in fundamental respects from the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) and its progeny:

"(C)ounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests."

Under this standard, however, counsel cannot be held ineffective for either failing to assert a fruitless claim or for failing to perfect a baseless appeal, as, in such cases, counsel has not foregone an alternative which offers any potential for success. E. g., Commonwealth v. Hubbard, 472 Pa 259, 278, 372 A.2d 687, 696 (1977); Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Harrison, 228 Pa.Super. 42, 323 A.2d 848 (1974). It is only when the abandoned (or waived) claim has "arguable merit " that we must undertake the further inquiry into counsel's basis for not pursuing it. E. g., Commonwealth v. Weathers, EL, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971, 976 (1978); Commonwealth v. Blackwell, 258 Pa.Super. 121, 392 A.2d 714 (1978); Commonwealth v. Harrison, 228 Pa.Super. 42, 323 A.2d 848 (1974). In this regard, petitioner's PCHA counsel neither instructed the PCHA court nor this Court of the issue or issues of "arguable merit" which trial and revocation counsel could and should have pursued on the direct appeals which they did not perfect. Indeed, petitioner's PCHA counsel does not argue that the advice of prior counsel not to appeal was incorrect, misleading, or ineffective in any particular. Rather, petitioner, and apparently the Majority also, reason that counsel's refusal to heed petitioner's requests to appeal per se demonstrates that counsel's conduct did not have a reasonable basis designed to effectuate petitioner's interests under the first prong of the Washington v. Maroney test, supra. Our examination of the relationship between a denial of...