Commonwealth v. Freeman

Concurring Opinion

by Mr. Justice Pomeroy:

Joining as I do in the opinion of the Court and in the concurring opinion of Mr. Justice Eagen, I add the following observations only because of the earnest dissenting opinion of Mr. Justice Roberts. With all respect, I believe he misinterprets what has been decided. As I view it, the Court is not at all unmindful of the federal constitutional rights enunciated in Douglas v. California, 372 U.S. 353 (1963), nor is it receding from the decision of our Court in Commonwealth v. Wilson, 430 Pa. 1, 241 A. 2d 760 (1968) and its “progeny.” No new uncertainties should result from the present deei sion, nor should any new burden be placed on the federal courts; no separate or deviate approach to the guaranteed right of appeal and the elements of waiver of that right is indicated by what has been here decided.

The question before us is a very narrow one, a factual one, of determining whether, on the whole record, the defendant, being indigent, knowingly waived his *12right to appeal with the assistance of conrt-appointed counsel. More specifically, the question is whether since there was no record made on this subject at the trial court level, the Commonwealth sustained the burden which it had of proving such a waiver by the fair weight of the evidence.

As has been pointed out in the other opinions, two able lawyers were appointed to represent the defendant. This occurred on the very day of his arrest. They gave immediate and continuous attention to the protection of his rights, from a prompt motion to suppress a confession (based on Jackson v. Denno, 378 U.S. 368 (1964)), through the preliminary hearing, the trial and the sentencing. Following the sentencing, they conferred at length with their client and told him of his right to have “his counsel,” i.e., his two court-appointed counsel, move for a neAV trial; he was further told that he had a right to appeal if a new trial was denied and that his court-appointed counsel would prosecute that appeal if he gave the word. The decision as to whether an appeal should be taken was properly left to the defendant.

There is no testimony that defendant’s attorneys told him in express terms that their services in prosecuting an appeal would be rendered at no cost to the defendant just as their services prior to the conviction had been rendered free of charge. But, as the other opinions note, the defendant testified that he knew his lawyers’ services were provided “for nothing” and that they were to be paid by the Commonwealth. There is no suggestion in this record that defendant either believed, or had any reason to believe, that his attorneys’ services on appeal would not be free; at the PCHA hearing defendant begged ignorance of his appeal right, but he evaded a direct answer to the question whether he understood that an appeal would be provided at public expense. On this record, there was a clear issue of *13credibility, and the hearing judge was justified in believing defendant’s attorneys and in finding and concluding that the Commonwealth had met its burden of proving that Freeman had been fully advised of all his rights and that his decision not to appeal was knowingly made.

It would, of course, have been better had Messrs. Williams and Scanlon, appellant’s lawyers, been categorically asked whether they had advised Freeman that he had the right to free counsel on appeal, and had given a categorical answer. In the context of the whole proceeding, however, this omission is understandable. The decision of this Court in Wilson had not yet come down, and the emphasis the Court has since placed on the right to free or court-appointed counsel as a right separate and distinct from the right of appeal had yet to be articulated. But this is not fatal where, as here, the circumstances disclosed by the record support a finding that the defendant was informed of his right to the assistance of court-appointed counsel on appeal. We have not yet held that circumstances can never spell waiver, or that a precise verbal formulation of waiver is a constitutional mandate. To find on this record a waiver of defendant’s right to the assistance of free counsel on appeal is not, in my view, a substitution of inference for evidence; neither does such a finding establish, as the minority suggests, a presumption that “without any evidence, ... all indigent defendants, represented by free counsel at trial, know that they can have free counsel on appeal.” Unlike Wilson, where the record was “completely silent as to whether appellant was at any point informed or was aware that he was entitled to court appointed counsel”, Wilson, supra, at p. 5, the record here supports the opposite finding.

To summarize, I believe that on the whole of the record in the case at bar, the hearing judge was justi*14fied in finding that Freeman knew of his right to appeal, using his court-appointed counsel for the purpose. That is all I understand to be decided in this case.

Mr. Justice Eagen joins in this concurring opinion.