Opinion
June 12, 1970.
September 18, 1970.
Criminal Law — Practice — Post-conviction relief proceedings — Conflict of interest of counsel — Dental of right of appeal — Failure to competently and intelligently waive right.
1. Defendant filed a PCHA petition alleging, among other things, that he was denied effective assistance of counsel because his counsel had a conflict of interest, and that he was denied his right of appeal because he had not competently and intelligently waived that right. During the course of a hearing, at which testimony with respect to the first allegation was presented, the court below, as well as the parties, conceded that defendant should be granted the right to file post-trial motions nunc pro tunc. However, at the conclusion of the hearing, the court denied defendant's petition in toto.
It was Held that the court below properly found that defendant failed to prove that there existed a conflict of interest in the representation afforded him by counsel. Accordingly, the part of the order of the court below denying defendant's conflict of interest claim and all other PCHA, § 3, claims he might have raised was affirmed.
2. It was Held that, since the trial record was silent and no proof was offered, the Commonwealth failed to prove defendant competently and intelligently waived his right of appeal. The order of the court below was reversed in part and defendant was granted the right to file post-trial motions nunc pro tunc to raise any evidentiary claims he might have.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 1434, Oct. T., 1969, from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, No. 810, in case of Commonwealth of Pennsylvania v. Vedo Gerome. Order affirmed in part and reversed in part.
Petition for post-conviction relief. Before SMITH, JR., J.
Order entered dismissing petition. Defendant appealed.
Frank M. Jackson, for appellant.
James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
WRIGHT, P.J., WATKINS and JACOBS, JJ., dissented.
Submitted June 12, 1970.
Appellant filed a petition under the Post Conviction Hearing Act, alleging, among other things, that he was denied effective assistance of counsel because his counsel had a conflict of interest and that he was denied his right of appeal because he had not competently and intelligently waived that right. Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P. S. § 1180-1 et seq. (Supp. 1970). A hearing was held, at which testimony with respect to the first allegation was presented. During the course of that hearing, the PCHA court, as well as the parties, conceded that appellant should be granted the right to file post-trial motions nunc pro tunc. At the conclusion of the hearing, however, the court denied appellant's petition in toto. It neglected to grant appellant the right to file post-trial motions nunc pro tunc. From the order of the PCHA court, this appealed followed.
Upon review of the record, we agree with the court below that appellant failed to prove there existed a conflict of interest in the representation afforded him by counsel. Cf. Commonwealth v. Werner, 217 Pa. Super. 49, 268 A.2d 175 (1970). However, at the same time, since the trial record is silent and no proof was offered, the Commonwealth failed to prove appellant competently and intelligently waived his right of appeal. Commonwealth v. Rawls, 217 Pa. Super. 123, 268 A.2d 121 (1970). Accordingly, the part of the order of the court below denying appellant's conflict of interest claim and all other Section Three claims he might have raised is affirmed. 19 P. S. § 1180-3 (Supp. 1970). See Commonwealth v. Beecham, 438 Pa. 326, 265 A.2d 372 (1970). The order is also reversed in part and appellant is granted the right to to file post-trial motions nunc pro tunc to raise any evidentiary claims he may have.
WRIGHT, P.J., WATKINS and JACOBS, JJ., dissent.