Com. ex rel. Herman v. Claudy

• Decision Date: 30 August 1954
• Citation: 176 Pa.Super. 387,107 A.2d 595
• Parties: COMMONWEALTH ex rel. HERMAN v. CLAUDY.
• Court: Pennsylvania Superior Court

Page 595

107 A.2d 595

176 Pa.Super. 387

COMMONWEALTH ex rel. HERMAN v. CLAUDY.

Superior Court of Pennsylvania.

Aug. 30, 1954.

Application for Allocatur Denied Oct. 6, 1954.

Marjorie Hanson Matson, Pittsburgh, for appellant.

John F. Boney, Asst. Dist. Atty., Wray G. Zelt, Jr., Dist. Atty., Washington, for appellee.

Before HIRT, Acting P. J., and ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

WOODSIDE, Judge.

The only question presented to us by the appellant in this appeal from the refusal of the lower court to grant a writ of habeas corpus is 'Under the circumstances of this case, did the failure of the Washington County Court to appoint counsel for Defendant deprive him of due process of Law?'

The matter was before the lower court on petition and answer. The court's own record of the sentence and what transpired there was also properly before it, Com. ex rel. Comer v. Claudy, 1954, 174 Pa.Super. 494, 496, 102 A.2d 227. Since the lower court dismissed the petition without a hearing, the facts alleged in the petition, if properly and sufficiently averred and unless contradicted by the record itself, must be accepted as true. The conclusions contained in it need not be.

It appears that on October 26, 1945 the relator pleaded guilty before President Judge Gibson in Washington County to 8 offenses of burglary, 12 of larceny, 8 of forgery, and 2 of false pretense, all alleged to have been committed between March 21, 1945 and August 25, 1945. He was sentenced to 2 1/2 years to 5 years on each of the offenses, some to run consecutively, but most concurrently. His total sentence was 17 1/2 years to 35 years in the Western Penitentiary to be computed from September 8, 1945, the day of his arrest.

The law to be applied in this case was set forth by this court in Com. ex rel. Reggie v. Burke, 1952, 170 Pa.Super. 647, 649, 90 A.2d 385, 386, as follows:

'The failure to provide counsel when none is requested or to advise a defendant that counsel will be assigned him upon request does not constitute, ipso facto, a denial of due process or other violation of a defendant's constitutional rights in non-capital cases. (Cases cited.) * * *

'Both federal and state courts have said that, to invalidate a plea of guilty in non-capital cases by reason of denial of due process arising from failure to provide a prisoner with counsel by the courts of this Commonwealth, the prisoner must establish that for want of beenfit of counsel an ingredient of unfairness actively operated in the process that resulted in his confinement. (Cases cited.) In the absence of such ingredient of unfairness, the question of waiver of the right to counsel, understandingly made, does not require consideration.'

See also Com. ex rel. Popovich v. Claudy, 1952, 170 Pa.Super. 482, 87 A.2d 489; Com. ex rel. Johnson v. Burke, 1953, 174 Pa.Super. 119, 100 A.2d 125.

Whetehr there is 'an ingredient of unfairness' is a determination to be made on the basis of the facts of the individual case; Uveges v. Com. of Pennsylvania, 1948, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127.

In the recent case of Com. ex rel. Swieczkowski v. Burke, 1953, 173 Pa.Super. 363, 366, 98 A.2d 229, 230, this court said:

'Youth, lack of education, inexperience with the intricacies of criminal procedure, improper conduct on the part of the court or prosecuting officials and the complicated nature of the offense charged may, in some combination, constitute the 'ingredient of unfairness' which renders the absence of counsel at sentencing a denial of due process. Uveges v. Com. of Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 93 L.Ed. 127.'

Two years prior to the sentence which is the subject of the present inquiry, the defendant had been charged with burglary, larceny, and forgery, for which offenses he was sentenced to six to twelve months in the Washington County Jail. After being paroled on this offense he violated his parole by leaving his employment and avoiding the local officials so that his whereabouts were unknown.

Appellant was arrested by the State Police in September, 1945, and held for questioning in connection with a series of burglaries and larcenies. Relator alleges that this questioning extended off and on over a period of 72 hours, during which time he was held incommunicado, part of the time in the Women's Quarters of the County Jail. He also alleges that at one stage of the questioning an officer grabbed him by the neck and threatened to choke him if he did not confess.

The Criminal Court records disclose that on September 8 1945, defendant signed a form entitled 'Waiver of Grand Jury and Entry of Plea', by which he agreed to enter a plea to burglary, forgery, and larceny of auto. On the same day defendant was taken before a Justice of the Peace, where he was held for court on 27 separate offenses.

From September 8, 1945 to October 26, 1945, when defendant was brought before the court for sentence, defendant was held in the Washington County Jail.

Relator now denies his guilt except as to one charge of forgery.

A record was made of the hearing. It shows that as the defendant stood at the bar, without counsel, the assistant district attorney advised the court that defendant had entered a plea of guilty to various indictments and counts which he then referred to in order and described in some detail.

He related the theft of three motor vehicles, a burglary of St. Patrick's Church in Canonsburg, where the defendant entered the rear window and stole $20 from the poor boxes; three burglaries of Carmel's Beer Place in Washington, Pa., where on one occasion he was seen, chased, and identified, two burglaries of the Washington Theatre, and burglaries of restaurants at Frederickstown and West Brownsville. He told how the defendant stole the motor vehicles, referred to above, to get away after committing some of the above crimes and how he stole...