Commonwealth v. Payton

• Decision Date: 06 August 1968
• Citation: 244 A.2d 644,431 Pa. 105
• Parties: COMMONWEALTH of Pennsylvania. v. Harold PAYTON, Appellant.
• Court: Pennsylvania Supreme Court

244 A.2d 644

431 Pa. 105

COMMONWEALTH of Pennsylvania. v. Harold PAYTON, Appellant.

Supreme Court of Pennsylvania.

August 6, 1968.

Frederick W. Andrews, Harrisburg, for appellant.

Jerome T. Foerster, Asst. Dist. Atty., Harrisburg, LeRoy S Zimmerman, Dist. Atty., Harrisburg, for appellee.

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

OPINION OF THE COURT

ROBERTS Justice.

In 1960 appellant was tried and convicted of murder in the first degree and received a life sentence. No appeal was taken. Seven years later Payton commenced the present action under the Post Conviction Hearing Act, seeking the right to file new trial motions and, if necessary, take a direct appeal to this Court. Following an evidentiary hearing, with counsel the petition was dismissed. Hence this appeal.

Appellant's sole claim is that he did not knowingly and intelligently waive his right to appeal in 1960 since he was told nothing whatsoever about appellate rights by his privately retained trial counsel. This contention was flatly contradicted by Payton's trial counsel who testified at the post conviction hearing that he and his client had discussed the possibility of an appeal, but that appellant never requested that such action be taken. Trial counsel also testified that he specifically informed appellant of the right to file new trial motions.

In his brief before this Court appellant also alleges that he ran out of money after paying for the services of his trial lawyer, but was never told that he could have free appellate representation if indigent. In Commonwealth v. Ezell, Pa., 244 A.2d 646 (1968) we faced this identical problem and held that Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), taken together require that an indigent (or one who becomes such at the end of trial) be told of the right to court appointed appellate counsel before a waiver can be shown. However, appellant in the present case cannot take advantage of that decision since he failed to raise any claim of post-trial indigency at the hearing below. The well established doctrine that appellate courts will not entertain arguments raised for the first time on appeal applies with equal force to appeals from collateral hearing such as this. Commonwealth ex rel. Bell v. Rundle, 420 Pa. 127, 216 A.2d 57, cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966). ^[1] A careful scrutiny of the hearing record reveals that it was never even suggested by appellant, his trial counsel, or his collateral counsel that Payton lacked the funds needed to hire a private appellate attorney.

Of course simply because a man can afford to hire private counsel does not mean that he forfeits his right to be told of the availability of the Appellate process. It would be anomolous indeed to hold that an indigent defendant must be given greater safeguards than his financially solvent counterpart. Thus, before it can be established that the nonindigent defendant knowingly and intelligently waived his absolute right of appeal, it must still appear that he was told of this right. The present case, therefore, turns only...