Com. ex rel. Banks v. Myers

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before BELL; ROBERTS; COHEN
• Citation: 423 Pa. 124,222 A.2d 880
• Decision Date: 27 September 1966
• Parties: COMMONWEALTH of Pennsylvania ex rel. Henry H. BANKS, Appellant, v. David N. MYERS, Supt., State Correctional Institution, Graterford, Pa.

Page 880

222 A.2d 880 423 Pa. 124 COMMONWEALTH of Pennsylvania ex rel. Henry H. BANKS, Appellant,
v.
David N. MYERS, Supt., State Correctional Institution, Graterford, Pa. Supreme Court of Pennsylvania. Sept. 27, 1966.

[423 Pa. 125] Henry Banks, in pro. per.

Wilson Bucher, Dist. Atty., Columbia, for appellee.

Page 881

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

OPINION OF THE COURT

ROBERTS, Justice.

This is an appeal from the denial, without hearing, of a habeas corpus petition. By a complaint dated February 9, 1948, appellant was charged with having committed[423 Pa. 126] murder on February 7, 1948. ¹ Counsel were appointed for appellant on February 11, 1948. A preliminary hearing was held on February 18, 1948. On March 8, 1948, an indictment was returned against appellant, he was arraigned, pleaded not guilty, and proceeded to trial by jury. Appellant was represented by counsel both at arraignment and at trial. On March 9, 1948, the jury found appellant guilty of murder in the first degree and he was sentenced to a term of life imprisonment. Neither post trial motions nor an appeal were filed on appellant's behalf.

In the habeas petition appellant presented to the court below there are several claims which require only cursory treatment. Appellant's contention that he was arrested without a warrant and without probable cause does not of itself afford him any ground for post conviction relief. E.g., Commonwealth ex rel. Light v. Maroney, 413 Pa. 254, 257, 196 A.2d 659, 661 (1964). Appellant's claim that he requested and was denied counsel during his initial incarceration in 1948 does not without more entitle him to any remedy at this time. Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 13, 198 A.2d 565, 566 (1964); Commonwealth ex rel. Wilkes v. Maroney, Pa., 222 A.2d 856, 862 (1966); Johnson v. State of New Jersey, 384 U.S. 719, 722, 86 S.Ct. 1772, 1775, 16 L.Ed.2d 822 (1966). The possibility that appellant was not represented by counsel during a preliminary hearing, at which he admittedly pleaded not guilty and about which he makes no other allegation, fails to suggest that the hearing was such a 'critical stage' that representation by counsel was constitutionally[423 Pa. 127] necessary. See, e.g., Commonwealth ex rel. Swilley v. Maroney, 420 Pa. 419, 420, 218 A.2d 242, 243 (1966). Finally, in light of the above discussion, appellant's argument that his indictment was invalidated by the alleged illegality of his arrest, preliminary hearing and the lack of counsel before trial is clearly groundless.

Also presented to the court below in appellant's petition is the assertion that his conviction must be invalidated because he 'was available, but was not notified or informed when the Indictment was presented to the Grand Jury for deliberation.' ² While it is true that the common law of Pennsylvania appears to entitle an accused to notice that his case is being presented to...