Commonwealth v. Gist

• Decision Date: 15 January 1969
• Citation: Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (Pa. 1969)
• Parties: COMMONWEALTH of Pennsylvania v. Edward GIST, Appellant.
• Court: Pennsylvania Supreme Court

249 A.2d 351

433 Pa. 101

COMMONWEALTH of Pennsylvania v. Edward GIST, Appellant.

Supreme Court of Pennsylvania.

January 15, 1969.

John H. Lewis, Jr. (submitted), Gregory M. Harvey Philadelphia, for appellant.

Arlen Specter, Dist. Atty. (submitted), James D. Crawford, Asst Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty Philadelphia, for appellee.

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

OPINION OF THE COURT

ROBERTS Justice.

Appellant is trying for the third time to collaterally attack his conviction of first degree murder. In his two prior attempts he was unrepresented; now he has counsel. After a hearing below, appellant's Post Conviction Hearing Act petition was denied and appellant took this appeal.

Appellant first claims that he was not told of his right to appeal with counsel guaranteed by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The Commonwealth agrees that since the trial record is silent on the issue of waiver, it has the burden of proving that appellant knowingly and intelligently waived his Douglas rights. See, e.g., Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).

At appellant's PCHA hearing, appellant's trial counsel testified that appellant did not want to appeal. He was unable to testify as to exactly what he told appellant about his appeal rights, and could not state that he had told appellant that he was entitled to free counsel on appeal if necessary. Under these circumstances it is clear that as a matter of law the Commonwealth has failed to prove a knowing and intelligent waiver. See, e.g., Commonwealth v. Dixon, Pa., 248 A.2d 231 (1968); Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968); cf. Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968).

Appellant requests that if we grant him Douglas relief, we consider the present proceeding as his direct appeal, since all his claims are on the trial record. Of course there is no reason to not accept appellant's offer, and we may proceed as if this case were on direct appeal from appellant's trial.

The Commonwealth concedes that a 'tacit admission' was introduced against appellant at his trial, but argues that the rule barring the use of tacit admissions should not be applicable to this case. However, under our recent decision in Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), the rule barring the use of tacit admissions applies to all cases on direct appeal following the granting of Douglas relief Cf. Commonwealth v. Storch, 432 Pa 121, ...