Opinion
February 3, 1967.
Appeals — Review — Inadequate record to determine constitutional question — Remand for hearing — Constitutional law — 6th and 14th Amendments — Right to counsel — Counsel on appeal — Rule of Douglas v. California — Waiver of right.
1. Where the Supreme Court is unable to determine from the record whether there is merit to appellant's claim that he was deprived of his constitutional right to counsel to prosecute his appeal, the Supreme Court will remand the case to the court below with directions to hold an evidentiary hearing at which time the circumstances of appellant's failure to take an appeal will be fully explored.
2. Where it appears that a person's failure to take a timely appeal from a sentence of conviction of crime resulted from his deprivation of his constitutional right to counsel to prosecute an appeal, the appellant must be given the opportunity to take an appeal as if timely filed.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 249, Jan. T., 1967, from order of Superior Court, Oct. T., 1966, Nos. 365, 366 and 367, affirming judgments of Court of Quarter Sessions of Philadelphia County, Sept. T., 1965, Nos. 397, 398 and 399, in case of Commonwealth of Pennsylvania v. Augustus Young. Order of Superior Court vacated and record remanded.
Same case in Superior Court: 208 Pa. Super. 741.
Indictments charging defendant with assault and battery, assault with intent to ravish, rape, indecent assault, statutory rape and burglary. Before McCLANAGHAN, J.
Verdict of guilty on all indictments, defendant's motions for new trial and in arrest of judgment denied and judgment of sentence entered. Defendant appealed to Superior Court which affirmed judgment. Petition for allocatur granted by Supreme Court.
Lewis P. Mitrano, for appellant.
Jack Meyers, Assistant District Attorney, for Commonwealth, appellee.
The petition for allocatur is granted, the order of the Superior Court vacated and the record remanded to the Court of Quarter Sessions of Philadelphia County, with directions to hold a hearing to determine if petitioner was deprived of the assistance of counsel in violation of the decision of the Supreme Court of the United States in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 (1963), and the decisions of this Court in Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966); Commonwealth ex rel. Branam v. Myers, 420 Pa. 77, 216 A.2d 89 (1966); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966). Should the hearing court determine that petitioner intelligently and knowingly waived his right to the assistance of counsel on appeal, the order of the Superior Court will be reinstated. Should the court conclude that petitioner did not knowingly and intelligently waive this right, it shall appoint counsel to represent petitioner on direct appeal to the Superior Court from judgment of sentence. In the event that it is concluded that there was a denial of petitioner's right to counsel, the Superior Court will permit, on motion of appointed counsel, the docketing of an appeal as if timely filed.