Criminal Law — Practice — Proceeding for post-conviction relief — Appointment of counsel to assist petitioner — Continuance for appeal from adverse determination by hearing court — Appeal prosecuted pro se — Reasons not of record.
1. Counsel's appointment to assist a petitioner at a PCHA proceeding does not cease with an adverse determination by the hearing court; it continues in effect for any appeal therefrom. [326]
2. In this case, in which it appeared that, for reasons which were not of record, defendant had chosen to prosecute pro se his appeal from dismissal of a PCHA petition, it was Held that the case should be remanded to the court below so that it could determine whether defendant had waived his right to free appellate counsel and, if not, so that it could appoint counsel for appellant.
Mr. Chief Justice BELL dissented.
OPINION BY MR. JUSTICE POMEROY, July 2, 1970:
In November, 1968, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P. S. § 1180-1 et seq., alleging the existence of newly discovered evidence and constitutional infirmities at his 1967 trial for murder. Counsel was appointed for appellant and an evidentiary hearing was held. The court below thereafter dismissed the petition and the instant appeal followed.
For reasons which do not appear of record, appellant has chosen to prosecute this appeal pro se. As we noted in Commonwealth v. Walters, 431 Pa. 74, 79, n. 3, 244 A.2d 757 (1968), appellant is entitled to the assistance of counsel on this appeal under Rule 1503 of the Rules of Criminal Procedure. See also Commonwealth v. Taylor, 433 Pa. 334, 336, 250 A.2d 487 (1969). Counsel's appointment to assist a petitioner at a PCHA proceeding does not cease with an adverse determination by the hearing court; it continues in effect for any appeal therefrom.
It may be that appellant's decision to proceed pro se represents an intelligent and understanding waiver of his right to free appellate counsel. From the present record, however, we are unable to find such a waiver. Under these circumstances, we shall remand to the court below so that it can determine (by hearing or otherwise) whether appellant has waived this right and, if not, so that it can appoint appellate counsel. Commonwealth v. Tolbert, 430 Pa. 167, 169-70, 242 A.2d 265 (1968).
Counsel may have determined that he could find no valid basis upon which to appeal. In that case, however, he should file a petition for leave to withdraw which would meet the criteria set forth in Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968).
The case is remanded to the Court of Common Pleas of Delaware County for the appointment of appellate counsel and/or other action consistent with this opinion.
Mr. Chief Justice BELL dissents.