Concurring Opinion
by Mr. Justice Eagen :Every person convicted of crime has the right to appeal, and if he is indigent he has the right to file his appeal without expense to himself, and to have his appeal perfected and prosecuted by counsel appointed by the court and paid for by the state. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). However, every person convicted of crime is not required to appeal and he may waive his rights in connection therewith. But to constitute an effective waiver, the record must establish that he intentionally and knowingly abandoned their rights, and it follows that one cannot be said to have knowingly abandoned his rights unless he was aware of what these rights are. Commonwealth v. Wilson, 430 Pa. 1, 241 A. 2d 760 (1968).
In the instant case the court below, after hearing the testimony of the convicted defendant and his trial counsel, concluded that Freeman was fully aware of all of his rights in connection with the filing and prosecution of an appeal from his conviction, and with this knowledge he failed intentionally to pursue them. Hence, the sole issue before us is whether or not the record supports the lower court’s conclusion in this respect. More refined, the issue is whether or not the record supports a finding that Freeman knew of his right to prosecute his appeal through legal counsel paid for by the county and without expense to himself.
The record discloses the following pertinent facts: that before trial the court appointed two lawyers to represent Freeman, defend the charges brought against him and directed that their services for so doing be paid for by the county;1 that the competence of these *10lawyers is undisputed (one is now the President Judge of the 13rd Judicial District); that these lawyers assisted Freeman in preparing his defense and presented that defense at trial; that two days after the guilty verdict was returned, these lawyers visited Freeman in jail and told him of his post-trial rights, inter alia, “[F]irst, to make him have his counsel move for ,a new trial, and, secondly, that if that new trial was denied, that he had a right to appeal to the Supreme Court of Pennsylvania and have his case reviewed .... that whether he wanted us to file this motion for a new trial and a subsequent appeal if a new trial was denied was a matter for his decision.” (Emphasis added.)
Following the conversation, outlined in part above, Freeman asked his counsel about “any possible right he might have to obtain a release from any jail sentence that he might receive,” and was then advised by his counsel of his right to apply to the Board of Pardons for commutation of sentence, but his counsel could not promise the Board would act favorably on such a request. Following this, Freeman then told his counsel “that he had no wish to proceed with a new trial,” and subsequently repeated this decision.2
It is true that Freeman was not specifically told that his trial counsel would proceed to seek a new trial in the trial court, or in the Supreme Court if necessary, without any expense to him. And it is equally true that the wisest course for counsel to pursue is to so advise their clients of this fact in the clearest language. However, absent such specific advice, it does not necessarily follow that a convicted defendant is not aware that his counsel will so proceed without expense to him. And even in the absence of such specific advice, if it *11is still demonstrated that a convicted defendant is aware that his counsel will so proceed, this is sufficient to sustain a finding of an effective waiver. Cf. Commonwealth v. Wilson, supra.
In view of all the circumstances that the present record discloses, how can one realistically say that the court below erred when it concluded that Freeman was aware of his right to “free counsel” if he wished to appeal from his conviction? With all due respect for the views expressed by my learned brother, Mr. Justice Roberts, it is my view that to conclude that the court below erred in this respect belies common sense, and I, for one, still believe that the courts are not required to ignore all common sense in making a decision.
I join in the majority opinion.
Mr. Justice Pomeroy joins in this concurring opinion.Freeman admittedly knew that his lawyers were serving without any expense to him.
According to evaluations resulting from psychological tests, Freeman had an I.Q. of 118 (above average) and an academic potential of Junior College level.