Opinion
March 21, 1973.
June 14, 1973.
Criminal Law — Appeals — Waiver — Record not sufficient to permit determination — Remand to court below.
In this case, in which it appeared that although defendant had proceeded in propria persona in the appeal from the denial of his PCHA petition, after becoming dissatisfied with the sufficiency of his court-appointed attorney's representation, the record did not permit a determination as to whether he had intelligently and understandingly waived his right to free and competent appellate counsel, it was Held that the case should be remanded to the court below for a determination of that issue and for such action as might be required to protect his right to competent and expeditious representation on appeal.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and SPAETH, JJ.
Appeal, No. 512, Oct. T., 1972, from order of Court of Common Pleas of Luzerne County, Feb. T., 1955, Nos. 137 to 140, inclusive, in case of Commonwealth of Pennsylvania v. Robert Harry Esser. Case remanded.
Petition for post-conviction relief.
Order entered dismissing petition, order by DALESSANDRO, J. Defendant appealed.
Robert Harry Esser, appellant, in propria persona.
Daniel F. Daley, First Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee.
Submitted March 21, 1973.
Although the appellant has proceeded in propria persona in this appeal from the denial of his Post Conviction Hearing Act petition, after becoming dissatisfied with the sufficiency of his court-appointed attorney's representation, the record as presently constituted does not permit a determination as to whether he has intelligently and understandingly waived his right to free and competent appellate counsel in these proceedings. Consequently, the case is remanded to the Court of Common Pleas of Luzerne County for a determination, by hearing or otherwise, of that issue and for such action as may be required to protect appellant's right to competent and expeditious representation on appeal. Commonwealth v. Cooney, 439 Pa. 324, 266 A.2d 650 (1970).
Act of January 25, 1966, P.L. (1965) 1580, 19 P. S. § 1180-1 et seq. (1973-74 Supp.)