COM. EX. REL. PARKER v. MYERS, 414 Pa. 427 (1964)

200 A.2d 770

Commonwealth ex rel. Parker, Appellant, v. Myers.

Supreme Court of Pennsylvania.Submitted April 24, 1964.
May 27, 1964.

Criminal law — Constitutional law — Practice — Preliminary hearing — Lack of counsel — Effect on due process — Plea of guilty — Effect.

In this habeas corpus proceeding in which it appeared that petitioner while represented by able counsel entered a plea of guilty to murder generally and was adjudged guilty of murder in the second degree and sentenced to prison and no appeal was taken from the judgment of sentence; that in this proceeding appellant contended that he was denied due process by the absence of counsel on his behalf at the preliminary hearing and at the coroner’s in

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quest, it was Held that (1) the absence of counsel at the preliminary hearing did not in itself violate the prisoner’s constitutional rights, and (2) by his plea of guilty at a time when he was represented by counsel, petitioner waived his right to question the proceedings prior to that time.

Mr. Justice COHEN dissented.

Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O’BRIEN and ROBERTS, JJ.

Appeal, No. 184, Jan. T., 1964, from order of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1963, No. 782, in case of Commonwealth ex rel. Alfred Parker v. David N. Myers, Superintendent. Order affirmed.

Habeas corpus.

Order entered dismissing petition, order by REIMEL, J. Relator appealed.

Alfred Parker, appellant, in propria persona.

William Porter, Burton Satzberg and Thomas M. Reed, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

OPINION BY MR. JUSTICE ROBERTS, May 27, 1964:

This is an appeal from a denial, without hearing, of a petition for writ of habeas corpus.

On October 19, 1959, appellant, represented by able counsel, entered a plea of guilty to murder generally. The Commonwealth certified that guilt rose no higher than murder in the second degree, and the court heard extensive testimony to determine the degree of guilt and to fix the penalty. Appellant was adjudged guilty

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of murder in the second degree and was sentenced to imprisonment of not less than nine nor more than eighteen years. No appeal was taken from the judgment of sentence.

By his present petition, filed in the Court of Common Pleas No. 6 of Philadelphia County on October 17, 1963, appellant contends that he was denied due process by the absence of counsel on his behalf at the preliminary hearing before the magistrate (which appellant also calls his “arraignment”) and at the coroner’s inquest.

This case is almost on all fours with Com. ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (1964), in which we held that absence of counsel at the preliminary hearing, under the circumstances, did not violate petitioner’s constitutional rights.

Furthermore, by his plea of guilty at a time when he was represented by counsel, petitioner waived his right to question the proceedings prior to that time. Com. ex rel. Walls v. Rundle, 414 Pa. 53, 198 A.2d 528 (1964).

The petition, on its face, is without merit and was properly dismissed without a hearing.

Order affirmed.

Mr. Justice COHEN dissents.