Opinion
March 18, 1968.
June 14, 1968.
Criminal Law — Counsel for defendant — Argument of post-trial motions below — Second petition for post-conviction relief — Nunc pro tunc appeal non-prossed.
Defendant filed a petition for post-conviction relief alleging, inter alia, that he was denied his right to appeal. The court granted the relief requested, giving defendant the right to file nunc pro tunc motions for a new trial. These motions were then filed and denied, and a subsequent appeal non-prossed for failure to proceed.
It was not clear from the record whether these motions were argued in the court below by defendant's counsel or by defendant himself. The record showed that defendant was not represented by counsel in his appeal following the denial of these motions.
The defendant filed a second petition pro se, claiming the same relief requested and granted previously, which the court below dismissed as being repetitious.
It was Held that, since petitioner was not represented by counsel in his nunc pro tunc direct appeal, the non-pros order could not be held to preclude relief at this time, and the record was remanded to the court below to determine the facts and to appoint counsel for defendant to aid defendant on the post-trial motions, as well as any further direct proceedings as might be required in the circumstances.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Appeal, No. 184, Oct. T., 1968, from order of Court of Quarter Sessions of Philadelphia County, Aug. T., 1964, No. 812, in case of Commonwealth of Pennsylvania v. Charles Bond. Record remanded.
Petition for post-conviction relief.
Order entered dismissing petition, opinion by GUERIN, J. Petitioner appealed.
Charles Bond, appellant, in propria persona.
Walter M. Phillips, Jr. and Michael J. Rotko, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Submitted March 18, 1968.
On December 30, 1964, appellant was tried and convicted of robbery and two counts of aggravated assault and battery, and sentenced to a term of eighteen months to five years. No appeal was taken from those sentences.
Appellant thereafter filed a petition under the Post Conviction Hearing Act alleging, inter alia, that he was denied his right to appeal. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 815 (1963). The court granted the relief requested, giving appellant the right to file nunc pro tunc motions for a new trial. These motions were then filed and denied and the subsequent appeal to this court non-prossed for failure to proceed. It is not clear from the record whether these motions were argued on the merits in the court below by appellant's counsel or by appellant himself. The record does show, however, that appellant was not represented by counsel in his appeal following the denial of these motions.
After our court non-prossed the appeal, appellant filed a second petition pro se, claiming the same relief requested and granted previously, which the court below dismissed as being repetitious. This would appear to have been the correct disposition, since, as the Commonwealth demonstrates, the proper action for the appellant to pursue would be to obtain a rule permitting an opening of the non-pros. order. However, since appellant was not represented by counsel in his nunc pro tunc direct appeal, the non-pros. order cannot be held to preclude relief at this time. Commonwealth v. Kizer, 428 Pa. 99, 236 A.2d 515 (1967).
The record is remanded to the court below to determine whether counsel assisted appellant in preparing and arguing nunc pro tunc post-trial motions. If appellant did not have counsel's assistance in the preparation and argument of those motions, and the court below finds no waiver of that right, see Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967), then it shall appoint counsel to aid appellant on those motions as well as any further direct proceedings. If appellant did have counsel's assistance and still desires to appeal from the denial of those motions, the court below shall, consistent with appellant's desire coupled with the necessary proof that appellant cannot retain private counsel, appoint counsel.