Opinion
April 12, 1965.
June 17. 1965.
Criminal Law — Counsel for defendant — Waiver — Evidence — Signed written statement alone.
1. Commonwealth ex rel. Ross v. Botula, 206 Pa. Super. 1, Held controlling.
2. In a habeas corpus proceeding, in which it appeared that relator contended that he had not intelligently waived his constitutional right to the assistance of counsel, and the record disclosed only that he had signed a statement of waiver prepared by the Commonwealth, it was Held that the order of the court below dismissing the petition without a hearing should be reversed.
ERVIN, P.J., dissented.
Submitted April 12, 1965.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent).
Appeal, No. 54, April T., 1965, from order of Court of Common Pleas of Crawford County, Sept. T., 1964, No. 2, in case of Commonwealth ex rel. David Loyal Buell v. Harry E. Russell, Superintendent. Order reversed.
Habeas corpus.
Order entered dismissing petition, opinion by DWYER, P.J., specially presiding. Relator appealed.
David L. Buell, appellant, in propria persona.
Paul D. Shafer, Jr., Assistant District Attorney, and Vincent J. Pepicelli, District Attorney, for appellee.
This is an appeal from the order of the court below dismissing a petition for writ of habeas corpus without a hearing.
Appellant contends that he did not intelligently waive his constitutional right to the assistance of counsel. The record before us discloses only that appellant signed a statement of waiver prepared by the Commonwealth.
It stated: "The defendant in open court plead[s] guilty to the charge preferred in the within indictment, waives presentation thereof to the Grand Jury, waives appointment of counsel, and consents to the pronouncement of sentence forthwith."
In light of our decision today in Commonwealth ex rel. Ross v. Botula, 206 Pa. Super. 1, 211 A.2d 42 (1965), it will be necessary for the lower court to ascertain the circumstances under which the waiver was obtained. Accordingly, the order of the Court of Common Pleas of Crawford County is reversed and the record is remanded to that court with direction to hold a hearing on the petition.
ERVIN, P.J., dissents.