Opinion
August 11, 1969.
Appeals — Counsel for defendant — Mere submission of brief previously prepared by defendant — Remand for evidentiary hearing — Waiver of right of direct appeal.
1. In this case, in which it appeared that defendant's petition for post-conviction relief, claiming a denial of his direct appeal rights, was denied without a hearing, and defendant appealed pro se; that the Superior Court remanded for appointment of counsel; that counsel, appointed to represent defendant on the appeal, merely xeroxed and submitted a brief wholly prepared by defendant; and that the Superior Court affirmed, and the Supreme Court granted allocatur; it was Held, as conceded by the Commonwealth, that the manner in which counsel took defendant's appeal to the Superior Court was clearly improper.
2. Where it appeared that the Commonwealth also petitioned for the case to be remanded for an evidentiary hearing on the question whether defendant had waived his right of direct appeal, it was Held that the petition should be granted.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 121, March T., 1969, No. 3077-A Misc. Docket, from order of Superior Court, Appeal No. 258, April T., 1968, affirming order of Court of Quarter Sessions of Allegheny County, May T., 1967, No. 55, in case of Commonwealth v. Gerald Villano. Petition for remand granted.
Same case in Superior Court: 213 Pa. Super. 791.
Petition for post-conviction relief. Before CLARK, P. J., specially presiding.
Order entered dismissing petition without hearing. Petitioner appealed to Superior Court, which affirmed order of the court below, per curiam, dissenting opinion by SPAULDING, J., in which HOFFMAN, J., joined. Allocatur granted by Supreme Court. Petition filed by Commonwealth for remand of case.
Gerald Villano, appellant, in propria persona.
Charles B. Watkins, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Appellant, claiming a denial of his direct appeal rights under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 (1963), petitioned for relief under the Post Conviction Hearing Act. The petition was denied without a hearing, and appellant appealed pro se. The Superior Court, on motion of the Commonwealth, then remanded for the appointment of counsel. The Allegheny County Public Defender was appointed to represent appellant on the appeal. Counsel then merely xeroxed and submitted a brief wholly prepared by appellant. The Superior Court affirmed per curiam, Judges SPAULDING and HOFFMAN dissenting, and we granted allocatur.
Petitioner has made other claims, not herein relevant, in this petition and in two prior PCHA petitions. In neither of the earlier cases was he represented by counsel.
The Commonwealth now concedes that the manner in which the Allegheny County Defender took appellant's appeal to the Superior Court violated the rationale of Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), a decision mandated by Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Clearly this is true; the right to be represented by counsel envisions much more for a petitioner than the use of the Defender's xerography equipment. Counsel must not merely be present — he must act as an advocate.
The Commonwealth now also petitions for this case to be remanded for an evidentiary hearing on the question whether appellant waived his right of direct appeal from his conviction. We agree that this is proper, and appellant's counsel also favors the granting of the petition. Thus the Commonwealth's petition for remand for the holding of an evidentiary hearing is granted.