Commonwealth v. Fareri , 271 Pa. Super. 174 ( 1979 )

HOFFMAN, Judge:

Appellant contends that his counsel was ineffective for not appealing (1) his judgment of sentence for burglary and possession of burglary tools and (2) a subsequent order revoking probation and imposing a sentence of total confinement. We agree and, accordingly, reverse the order denying relief under the Post Conviction Hearing Act (PCHA)¹ and allow appellant to file his appeals nunc pro tunc.

On August 1, 1972, appellant was convicted of burglary and possession of burglary tools. The lower court denied his post-trial motions and sentenced him to six months to two years imprisonment and five years probation. No direct appeal was taken. On February 2, 1977, the lower court revoked appellant’s probation and sentenced him to two to five years imprisonment. No direct appeal was filed. On May 19,1977, appellant filed a PCHA petition,² alleging that the Defender Association of Philadelphia, which represented him throughout all stages of his burglary and possession trial and his probation revocation hearing, was ineffective for not perfecting direct appeals. On April 26, 1978, at the hearing on his PCHA petition, appellant testified that following both his 1972 conviction and sentence and his 1977 revocation of probation and sentence, he asked the public defender who was representing him to file appeals. In support of his testimony concerning the second appeal, appellant produced correspondence from the Defender Association. In a letter to appellant dated February 10, 1977, the chief of the appeals division of the Defender Association stated that his office would not file an appeal because such appeal would clearly not be successful. He further informed appellant that he had an absolute right to file an appeal and to the representation of counsel, and enclosed forms which appellant could complete and file to perfect an appeal. Appellant testified that he wrote back to the Defender Association, stating that he did not know what to do with the appeal papers. Appellant further testified that the chief of appeals replied, in a letter dated March 29, 1977, to inform appellant that filing an appeal was up to him. The Commonwealth presented no evidence. The lower court denied relief, and this appeal followed.

An indigent defendant has a constitutional right to the assistance of counsel to prosecute his appeal, and this right includes the right to such assistance in the task of taking and perfecting an appeal. Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966); Commonwealth v. Haynes, 234 Pa.Super. 556, 340 A.2d 462 (1975); Commonwealth v. Peake, 210 Pa.Super. 133, 231 A.2d 908 (1967). The right to the assistance of counsel on appeal “embodies more than the right to the assistance of counsel in ‘meritorious cases’; it embodies the right to representation on appeal if the defendant so desires, whatever the prospects of success may appear to the court or counsel.” Commonwealth ex rel. Newsome v. Myers, supra, 422 Pa. at 243, 220 A.2d at 888. An indigent defendant can waive his right to the assistance of counsel for the perfection and taking of an appeal “if that waiver constitutes ‘an intentional relinquishment or abandonment of a known right.’ ” Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762 (1968) (quoting Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 218, 220 A.2d 883, 884 (1966); Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157,160, 218 A.2d 811, 813 (1966)). The Commonwealth has the burden of demonstrating a waiver of these rights by a preponderance of the evidence. Commonwealth v. Wilson, supra.

In Commonwealth v. Peake, supra, the appellant testified that he urged his trial counsel, a voluntary defender, to take' an appeal, and trial counsel testified that he told appellant that there were no grounds for an appeal and that appellant should contact the prison social worker to obtain the necessary forms if he wanted to appeal. This Court held that there could not be a finding of waiver “[i]n light of the possibility that petitioner abandoned his appeal because of a misimpression fostered by his trial counsel.” 210 Pa.Super. at 136, 231 A.2d at 909.

In the instant case, the appellant’s testimony that he requested his trial counsel to file an appeal after the 1972 conviction and sentence was uncontradicted. Because the Commonwealth introduced no evidence to show that appellant waived his right to appeal and to the assistance of counsel, it did not meet its burden of demonstrating that appellant’s failure to appeal was “ ‘an intentional relinquishment or abandonment of a known right.’ ” Commonwealth v. Wilson, supra. Accordingly, we hold that appellant is entitled to an appeal nunc pro tunc.

Concerning appellant’s failure to appeal the 1977 order revoking his probation and imposing sentence, the record clearly reveals that (1) appellant asked his counsel to appeal, but (2) the Defender Association refused to file an appeal, believing the case lacked merit. Because appellant was entitled to the assistance of counsel to assist in the perfecting of an appeal, he did not waive his right to appeal when he did not file the forms the Defender Association sent him. There is no evidence to support the lower court’s finding that the Commonwealth met its burden of demonstrating that appellant waived his appeal rights. Thus, on remand appellant must be allowed thirty days to file direct appeals nunc pro tunc from both the 1972 judgment of sentence and the 1977 order revoking probation and imposing sentence.

Reversed and remanded.

CERCONE, President Judge, files a dissenting opinion.

1 . Act of Jan. 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1978-79).

2 . The PCHA petition was originally filed by appellant pro se. Subsequently, present counsel was appointed, and he filed an amended petition. Because appellant was represented for the first time by new counsel at this PCHA proceeding, he has preserved his claim. See Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n.6, 372 A.2d 687, 695 n.6 (1977) (“ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant”).