Opinion
April 23, 1969.
Criminal Law — Counsel for defendant — Appeal — Averments and testimony not contradicted by Commonwealth — Record.
In this post-conviction proceeding, in which it appeared that petitioner alleged, in his petition, and asserted at the hearing, without contradiction by the Commonwealth, that he was not informed by his trial counsel or by the court of his right to the assistance of counsel on appeal, and that there were not any facts in the record to establish anything contrary to what petitioner averred, it was Held, in the circumstances, that the orders of the court below should be reversed and the record remanded to the court of original jurisdiction.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Petition for leave to appeal, No. 387, January T., 1969, from order of Superior Court, Oct. T., 1968, No. 605, affirming order of Court of Quarter Sessions of Philadelphia County, April T., 1960, Nos. 455 and 456, in case of Commonwealth v. William Brown. Orders of court below reversed and record remanded.
Same case in Superior Court: 213 Pa. Super. 771.
Petition for post-conviction relief. Before GUERIN, P. J.
Order entered dismissing petition. Defendant appealed to the Superior Court, which affirmed the order of the court below. Appeal to Supreme Court allowed.
Marvin I. Block, for appellant.
Samuel T. Swansen and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
In June 1960, the appellant, William Brown, was convicted by a jury in Philadelphia County of assault with intent to rob and aggravated assault and battery. Prison sentences were imposed in each case to run consecutively. No appeal was entered from the judgments.
In 1968, Brown filed a petition seeking post-conviction relief. The petition was dismissed by the trial court after a hearing. An appeal to the Superior Court resulted in an order of affirmance without opinion. We have before us a petition requesting allocatur which we now grant.
In his petition seeking post-conviction relief, Brown alleged, inter alia, that he was not informed by his trial counsel or by the court of his right to the assistance of counsel for the purposes of filing and prosecuting an appeal from the 1960 convictions and judgments; and that he personally was not aware of those rights at the pertinent time. He repeated those assertions at the hearing on his petition. The Commonwealth offered no testimony to refute this allegation and testimony, nor are there any facts in the record anywhere to establish anything to the contrary. Under the circumstances, the orders of the courts below must be reversed and the record remanded to the court of original jurisdiction to give the appellant the opportunity of filing post-trial motions nunc pro tunc and the opportunity to appeal if an adverse decision is entered. See Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), and Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968).
It is so ordered.