Commonwealth v. Wagenhoffer

HESTER, Judge: This appeal arises from the denial of appellant’s petition for relief under the Post Conviction Hearing Act. See 19 P.S. §§ 1180-1 et seq. (Supp.1978-79). We find appellant’s arguments without merit and therefore affirm the action of the court below. [416] On February 6, 1976, a jury found appellant guilty of having possessed, with intent to deliver heroin, on divers dates, to-wit, on May 19, May 20 and June 2, 1975. Appellant was represented by private counsel during trial, as well as for the filing of post trial motions for a new trial and arrest of judgment, which were denied. On April 14, 1976, appellant was sentenced to a term of imprisonment from four to ten years. At the sentencing, the following colloquy took place: The Court: Mr. Wagenhoffer, you have 30 days within which to appeal these judgments of sentences, and the order placing you on probation. If you wish to appeal the appeal is properly taken to the Superior Court of Pennsylvania. If you cannot afford counsel, counsel will be appointed to represent you free for the purpose of perfecting the appeals and arguing them before the Superior Court. If you fail to take the appeal within the requisite 30 days from this date, you will be deemed to have waived your right of appeal and you right to challenge the regularity of this proceeding to date. Do you understand what I have said? The defendant: Yes, Sir. The Court: Have you any questions about it? The defendant: No, Sir. On May 14, 1976, with the assistance of the law clinic, appellant filed an appeal pro se. He also petitioned the lower court for the appointment of counsel. The trial court responded by the appointment of the Public Defender within six days. During June, 1976, however, appellant retained new private counsel. On December 24, 1976, the lower court filed an opinion in compliancé with Superior Court Rule 46 responding to the arguments set forth in appellant’s appeal brief. In that opinion the lower court stated that it had not received formal notice of appellant’s appeal until December 3, 1976, a manifest violation of Superior Court Rule 46.1 On [417] February 2, 1977, this court quashed the appeal. Commonwealth v. Wagenhoffer, 245 Pa.Super. 617, 372 A.2d 431 (1977). Appellant then filed a PCHA petition on April 4, 1977, alleging that he had been denied effective assistance of counsel both at trial and in perfecting an appeal. The Public Defender was appointed to represent the appellant. On August 4,1977, the lower court conducted a hearing on said Petition and found as a fact that counsel was not ineffective, that the appellant had voluntarily and knowingly waived his appeal rights when he failed to give proper notice of appeal as required by our rules. As stated by the lower court on page 5 of its Opinion: “Every individual convicted of a crime has the right to have his conviction and sentence reviewed through appeal and if indigent to have his appeal perfected by appointed counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). This right of appeal is not mandatory and may be waived. An effective waiver is established when the accused is made aware of all of his rights incident to an appeal and intentionally abandons or fails to exercise them. Commonwealth v. Wilson, 431 Pa. 21, 241 A.2d 760 [244 A.2d 734] (1968). The Superior Court has held that where petitioner expressed the desire to prosecute his own appeal and misinterpreted counsel’s letter offering assistance if requested, petitioner had effectively waived rights to appeal. Commonwealth v. Perrine, 223 Pa.Super. 486, 302 A.2d 432 (1973). Defendant made an informed and deliberate choice in representing himself when he knew counsel was available. He has presented no evidence which proves ineffective assistance of counsel. The only thing which he has shown is that he [418] was unrepresented for a period of time. The defendant effectuated an appeal on his own using the resources of the law clinic.” Our Supreme Court held in Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468, 472 Pa. at page 145, 371 A.2d at page 476: “The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. See Commonwealth v. Smith, 454 Pa. 256, 312 A.2d 396 (1973); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968). Consequently, this Court will not disturb its findings if they are supported in the PCHA record. See Commonwealth v. Hauser, 450 Pa. 388, 299 A.2d 218 (1973); Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1968); Commonwealth v. Minnick, supra. This is true even when the record could support a contrary holding. See Commonwealth v. Hauser, supra.” In the instant case, the PCHA court found that appellant elected to file his appeal pro se utilizing the assistance of the law clinic of the institution. Said law clinic was certainly familiar with the rules of appellate procedure. .There is nothing in the record to indicate that appellant retained his trial counsel to file an appeal in his behalf or that appellant ever retained counsel for that specific purpose. When asked if he ever instructed Mr. Reif (trial counsel) to file an appeal on his behalf, appellant responded: “I wrote him and I asked him what he was going to do, and if he was going to take any further action for me, and I never got a reply back.” PCHA N.T. at 5. It is this court’s considered opinion that the above statement in and of itself does not demonstrate that appellant had directed Attorney Reif to file an appeal on his behalf. Appellant personally assumed the responsibility of filing and perfecting his appeal to this court. He elected to do so with the aid of the law clinic in the institution. Therefore, the lower court concluded, and we agree, that when appel [419] lant failed to give proper notice of appeal as required by the rules of this court, he affected a voluntary and knowing waiver of his appeal rights. An examination of this record leads us to conclude that appellant is playing games with our system of criminal justice. He was represented by private counsel during the trial and post trial motions. Following the imposition of sentence, he filed his appeal pro se. He then requested and was granted the assistance of a Public Defender. Several days later, appellant retained Richard D. Atkins to represent him. Mr. Atkins’ original function was to obtain the release of appellant on bail. (See notes of Post Conviction Hearing dated August 4, 1977). In this he was successful. Atkins was retained late in June of 1976. The appellant had been sentenced April 14, 1976. Atkins could not have been retained for the purpose of filing the appeal. The appeal time expired May 14, 1976. The PCHA court determined that appellant made an informed and deliberate choice in representing himself at the time he knew counsel was available. Those findings are supported in the PCHA record. They should not be disturbed. Judgment affirmed. SPAETH, J., files a dissenting opinion. JACOBS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case. Footnotes [1] Superior Court Rule 46 provided in part: [417] Immediately upon taking his appeal, appellant shall serve notice thereof ... on the judge who entered the order, judgment or decree below Rule 46 was abrogated by Pa.R.A.P. 5102, which became effective on July 1, 1976. The requirement of an opinion by the trial court in support of an order that has been appealed is now provided in Pa.R.A.P. 1925.