Commonwealth v. Freeman

¶1Dissenting Opinion

¶2Today a majority of this Court has denied appellant his constitutionally-guaranteed right to free appellate counsel. In so doing, the majority has ignored the facts of this case, our recent decisions in this area, and controlling principles of federal constitutional law. For our state courts, this decision means new uncertainties; an area of the law presumably settled by us now becomes unclear. For the federal courts, this decision means unnecessary burdens; an area of the law in which our decisions were in accord with federal constitutional law now becomes one in which our decisions are in conflict. I cannot accept these results and I must dissent.1

¶3First, the majority ignores several critical facts which are relevant to appellant’s knowledge of his right to free appellate counsel. The record made at trial is devoid of any indication that appellant was informed of his right to free appellate counsel. Likewise, the PCHA record is devoid of any evidence that appellant knew of his right to free appellate counsel.2 Ap*15pell ant’s trial counsel were never questioned on this point. The Commonwealth produced no evidence on this point. And the hearing court made no finding on this point.3

¶4Yet, despite the lack of any evidence indicating that appellant knew of his right to free counsel on appeal, the majority finds that “[i]t is clear that defendant knew of his right to free Court-appointed counsel to represent him in post-trial motions and in an appeal, and that he voluntarily and intelligently waived his right.” Since there is nothing in the record to support such a “finding,”4 I can only conclude that the *16majority’s “finding” is based on an assumption that since appellant “had been represented at trial by two experienced, free counsel,” he must have known of his right to free appellate counsel. Only by such an assumption could the majority eliminate the need for affirmative record evidence on the crucial issue of appellant’s actual knowledge of his right to free appellate counsel.

¶5I find this substitution of assumption for evidence unusual, particularly in light of a long, and until today unbroken, line of cases which we have decided over the past several years: See, e.g., Commonwealth v. Herge, 436 Pa. 542, 260 A. 2d 787 (1970) (alternative holding); Commonwealth v. Gist, 433 Pa. 101, 249 A. 2d 351 (1969) ; Commonwealth v. Zaffina, 432 Pa. 435, 248 A. 2d 5 (1968) ; Commonwealth v. Ezell, 431 Pa. 101, 244 A. 2d 646 (1968) ; Commonwealth v. Mumford, 430 Pa. 451, 243 A. 2d 440 (1968) ; Commonwealth v. Hall, 430 Pa. 163, 242 A. 2d 241 (1968) ; Commonwealth v. Stewart, 430 Pa. 7, 241 A. 2d 764 (1968); Commonwealth v. Wilson, 430 Pa. 1, 241 A. 2d 760 (1968) ; cf. Commonwealth v. Stewart, 435 Pa. 449, 257 A. 2d 251 (1969) (reaffirming earlier Stewart holding) ; Commonwealth v. Ritchey, 431 Pa. 269, 245 A. 2d 446 (1968) (concerning counsel at trial; reaffirms standard enunciated in Stewart, supra); Commonwealth ex rel. Fink v. Rundle, 431 Pa. 264, 244 A. 2d 648 (1968) (not a silent record and therefore petitioner had burden of proving he did not know of his right to free appellate counsel); Commonwealth v. Blose, 430 Pa. 209, 241 A. 2d 918 (1968) (counsel at trial). These-cases stand for the proposition that there must be a finding of fact that an accused indigent not *17only knew of Ms right to appeal, but also that he knew of his right to free counsel on appeal, and intelligently waived both rights by not appealing. And, not only must there be a showing of an accused’s knowledge of both rights, but where there was no trial record on the issue, the Commonwealth has the burden, at the PCHA hearing, of proving that the defendant had the requisite knowledge.

¶6Commonwealth v. Wilson, supra,is particularly instructive, for it is clear that Wilsonand the instant case are identical in every respect—except for this Court’s disposition. Wilson, like Freeman, was an indigent represented by court-appointed counsel at trial. Wilson, like Freeman, was not told at trial of his right to appeal, or of his right to free counsel to prosecute his appeal. Wilson, like Freeman, filed a petition under the Post Conviction Hearing Act, alleging a denial of his constitutional right to appeal, as set forth in Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). Wilson, like Freeman, was denied relief by the hearing court, on a finding only that he knew of his right to appeal, and waived that right by not appealing.

¶7But Wilson, unlike Freeman, was given relief. This Court held that the right to free appellate counsel is part of an accused’s rights under Douglas. This Court held that “an accused cannot waive his right to . . . assistance of appellate counsel unless he is told of his right to such court appointed counsel.” 430 Pa. at 5, 241 A. 2d at 763. This Court stated that “[t]he record below, although it does indicate that appellant may have been told that he could appeal, is completely silent as to whether appellant was at any point informed or was aware that he was entitled to court appointed counsel.” Id. This Court held that the Commonwealth had the burden of proving such knowledge. And this Court, although it could have concluded that the Common*18wealth had not met its burden, remanded for an evidentiary hearing on the question of Wilson’s knowledge of his right to. free appellate counsel, since it was arguable that our prior decisions had not made it clear that “the Commonwealth must demonstrate, where the record is silent, that the post-conviction applicant was aware of both his right to appeal and his right to court appointed appellate counsel.” Id. (emphasis in original). ...

¶8Wilsonwas decided on May 3, 1968, nine months after Freeman had his evidentiary hearing, and five months after the hearing court rendered its opinion. Thus Wilson and. Freeman were in precisely the same posture when they had their evidentiary hearings—i.e., the parties did not have the decision in Wilsonto guide them—and they were in precisely the same posture on appeal. How, then, can this Court now refuse Freeman at least what it granted Wilson? In fact, it is even arguable that Freeman should not be required to go through another hearing, because on this record, even without the guidance of Wilson, there is uncontradicted testimony by Freeman indicating, that he did not know of his right to free appellate counsel.5

¶9Clearly, Wilsonshould control the instant case. The holding in Wilsonhas never been doubted by this Court and was just recently termed “settled law in this Commonwealth.” Commonwealth v. Herge, 436 Pa. at 549, 260 A. 2d at 790. The holding has been constantly, and explicitly, reaffirmed in later cases. Commonwealth v. Ritchey,. 431 Pa: at 274-75, 245 A. 2d at 450: “We reaffirm our earlier holding that as a matter of law there cannot be a finding of á knowing, and intelligent waiver of the right to counsel unless the accused shall have been explicitly informed that he is entitled to free counsel if he is indigent. Commonwealth v. Wilson *19. . . .” (Emphasis in the original) Commonwealth v. Zaffina, 432 Pa. at 438-39, 248 A. 2d at 7: “In Commonwealth v. Wilson . . . and again in Commonwealth v. Mnmford ... we held unequivocally that where the trial record is silent on the issue of waiver, ‘the Commonwealth has the burden to show not only that a defendant was told, or knew, of his absolute right to appeal, but also that he knew he could have counsel for this appeal, and, if indigent, that he could have free counsel.’ Mumford, supra, at 454, 243 A. 2d at 442.”

¶10And yet today, for the first time, the majority holds that an indigent defendant represented by free trial counsel does not have to be told of his right to free appellate counsel. Evidently, it will now be presumed, without any evidence, that all indigent defendants, represented by free counsel at trial, know that they can have free counsel on appeal. I submit that such a presumption is arbitrary, contrary to our prior decisions,6 and totally unjustifiable. One could as easily say that once an indigent is informed of his Miranda right to free counsel at interrogation, he is presumed to know that free counsel will follow him through the rest of the trial and appeal. Further, the majority’s decision will undoubtedly create uncertainties in the trial courts of this Commonwealth. Nothing, of course, could be more confusing to our trial courts, and the profession, than to say we are following Wilsonwhile reaching a totally opposite result.

¶11Besides creating problems for our state court system, today’s decision unwisely imposes additional bur*20dens on the federal courts. Now the two court systems will be in disagreement in this area of federal constitutional law, for the majority’s opinion imposes upon the federal courts the uncomfortable and burdensome task of correcting constitutional errors, and protecting constitutional rights, which the state system leaves uncorrected. The federal courts have not, and will not, ignore the dictates of federal constitutional law which, until today, we ourselves had followed in Wilsonand its progeny.

¶12We are dealing here with a waiver of a federal constitutional right, the right to free appellate counsel as mandated by Douglas v. California, supra.As such, we must follow the federal standard for finding waiver: “For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969) (emphasis added). We cannot presume knowledge, and hence waiver, of constitutional rights, for “ ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938) (emphasis added). There must be proof that the defendant knew he had the right to free appellate counsel; without such proof we cannot find that he knowingly and intelligently waived his constitutional right: “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890 (1962) (emphasis added).

¶13The majority has done precisely what the United States Supreme Court has held impermissible. Waiver of a federal constitutional right has been presumed *21from, a silent record. There is no proof that appellant knew of his right to free counsel on appeal. There is no record to show such knowledge. There can he no waiver. While, in my view, appellant will have no difficulty vindicating his constitutional right in federal court,7 it is indeed most unfortunate that the majority refuses to allow him to vindicate it here.

¶14Mr. Justice O’Bkien joins in this dissent.