Com. ex rel. McCray v. Rundle

Decision Date01 July 1964
Citation202 A.2d 303,415 Pa. 65
PartiesCOMMONWEALTH of Pennsylvania ex rel. Robert McCRAY, Appellant, v. Alfred T. RUNDLE, Superintendent, State Correctional Institution of Philadelphia.
CourtPennsylvania Supreme Court

David C. Harrison, Philadelphia, for appellant.

Thomas M. Reed, Chief Asst. Dist. Atty., Philadelphia, for appellee.


EAGEN, Justice.

The appellant, Robert McCray, after indictment was tried before a judge without a jury for: (1) Conspiracy; (2) Statutory rape (3) Assault and battery; (4) Contributing to the delinquency of a minor. He was convicted on all four indictments and sentenced to the Eastern State Correctional Institution for an indeterminate term of from five to ten years.

An appeal was timely filed to the Superior Court, pro personam, which was eventually quashed because of failure to properly perfect it.

Subsequently a petition for habeas corpus was filed in the Philadelphia County Common Pleas Court which was dismissed. On appeal, the Superior Court in a four to three decision affirmed this order. We granted allocatur and this appeal is presently before us.

At the above trial, the defendant, McCray, was unrepresented by counsel. The single legal question in issue is whether or not he understandingly and and intelligently waived his constitutional right to the assistance of counsel. We conclude that he did not.

One McWarren was tried jointly with McCray on the same charges. When the case was called for trial, a representative of the Philadelphia Defenders' Office appeared on behalf of McWarren, but declined to represent McCray because he believed a conflict in interest existed. The assistant district attorney then questioned McCray as follows:

'Q. McCray, stand up. Do you have a lawyer?

'A. No, sir.

'Q. Can you afford a lawyer?

'A. I have tried unsuccessfully to retain counsel. I was talking to Mr. Cain. However, since it is listed for this morning, I am willing to go along with it for trial to be disposed of, sir.'

The court then entered the discussion with a single question:

'Q. You are willing to proceed without an attorney?

'A. Yes, sir.'

The trial without more, then proceeded with McWarren's counsel attempting to prove that the crimes involved, if committed, were the acts of McCray. The sole factual witness for the prosecution was the victim, a fifteen-year old girl, who had given birth to a child out of wedlock some months before. Both defendants were found guilty.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court of the United States ruled that indigent defendants in criminal trials in state courts involving felonies have the right to the assistance of counsel, and that a trial and a conviction without such counsel is void and in violation of the Fourteenth Amendment to the United States Constitution. In Commonwealth ex rel. Craig v. Banmiller, 410 Pa. 584, 189 A.2d 875 (1963), we construed Gideon to apply prospectively. However, in three subsequent decisions, the United States Supreme Court apparently indicated the ruling was retroactive. See, Weigner v. Russell, 372 U.S. 767, 83 S.Ct. 1104, 10 L.Ed.2d 138 (1963); Vecchiolli v. Maroney, 372 U.S. 768, 83 S.Ct. 1105, 10 L.Ed.2d 138 (1963); Garner v. Pennsylvania, 372 U.S. 768, 83 S.Ct. 1105, 10 L.Ed.2d 138 (1963). In United States ex rel. Craig v. Myers, 220 F.Supp. 762 (1963), the United States District Court of the Eastern District of Pennsylvania specifically so held. The United States Third Circuit Court of Appeals subsequently affirmed this decision, 329 F.2d 856 (1964).

However, the United States Supreme Court has also decided that counsel need not be forced upon a defendant and that, under appropriate circumstances, he may waive the right to be so represented. Carter v. People of State of Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172 (1946). However, for the waiver to be valid and effective, it must be the competent and intelligent act of the accused: Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938); Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). In determining whether or not the right to the assistance of counsel is 'intelligently' waived, all of the facts and circumstances of the particular case, including the background and conduct of the accused, must be examined and considered, Johnson v. Zerbst, supra. Further, when a judgment of conviction is collaterally attacked in habeas corpus proceedings on the ground that the defendant did not have the benefit of counsel, it is his burden to establish that the right to the assistance of counsel was not competently and intelligently waived. Moore v. State of Michigan, supra. By the same token, courts should indulge every reasonable presumption against waiver of fundamental constitutional rights and not presume acquiescence in their loss. Johnson v. Zerbst, supra.

What constitutes a competent and intelligent waiver to the assistance of counsel and the trial court's responsibility in determining if such exists was indicated in the case of Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1947), the court stated at 323 of 68 S.Ct.: 'To be valid such a waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.' (Emphasis supplied.)

In the present case, the crimes charged were of a very serious nature. The defendant McCray's position was difficult even if properly represented....

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