Com. ex rel. Scasserra v. Maroney

• Decision Date: 21 July 1955
• Citation: 115 A.2d 912,179 Pa.Super. 150
• Parties: COMMONWEALTHof Pennsylvania ex rel. Philip SCASSERRA, Appellant, v. Captain James F. MARONEY, Acting Warden, Western State Penitentiary, Pittsburgh.
• Court: Pennsylvania Superior Court

Page 912

115 A.2d 912

179 Pa.Super. 150

COMMONWEALTHof Pennsylvania ex rel. Philip SCASSERRA, Appellant, v. Captain James F. MARONEY, Acting Warden, Western State Penitentiary, Pittsburgh.

Superior Court of Pennsylvania.

July 21, 1955.

Philip Scasserra, in pro. per.

H. F. Dowling, Dist. Atty., Richard D. Walker, Asst. Dist. Atty., Harrisburg, for appellee.

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

ROSS, Judge.

This is an appeal from the dismissal by the Dauphin County Court of a petition for a writ of habeas corpus which was based upon an alleged violation of relatorappellant's constitutional right of due process in that he received no preliminary hearing before a magistrate prior to his indictment.

Appellant was sentenced to a term of not more than four nor less than two years in the Eastern State Penitentiary for a burglary of the Bureau of Motor Vehicles of the Commonwealth of Pennsylvania at Harrisburg. This sentence, imposed by the Dauphin County Court, was to be computed from the expiration of a sentence which he was serving in Allegheny County, and it is this Dauphin County sentence which is here attacked.

It appears that appellant removed a number of automobile certificates of title from the Bureau of Motor Vehicles office. He and an accomplice than located the vehicles and proceeded to steal and sell them by using forged registrations and assignment of titles. In July 1951 the New York police apprehended him.

While an custody he gave a detailed written confession of his operations in Pennsylvania, including the burglary for which he was sentenced. He waived extradition and returned to Pennsylvania. At Harrisburg he re-enacted the burglary of the Bureau of Motor Vehicles and was then removed to Allegheny County, where he was convicted and sentenced for one of the auto thefts. Meanwhile a member of the Pennsylvania State Police swore to an information charging appellant with the burglary at Harrisburg and a warrant issued. The grand jury of Dauphin County indicted appellant and on August 4, 1952, in the company of his attorney, he entered his plea of guilty, and so indorsed the indictment. He was then sentenced by the court.

Two years later, on August 13, 1954, he filed the instant petition for a writ of habeas corpus, setting up the alleged procedural irregularity in the process of his indictment, conviction and sentence. He contends that his constitutional right to due process of law was violated by reason of the fact that he was indicted without having first been given a preliminary hearing by the magistrate in Harrisburg before whom the informations were sworn. He relies principally upon Article I, §§ 9 and 10 of the Pennsylvania Constitution, P.S.

Article I, § 9 provides: 'In all criminal prosecutions the accused hath a right to be heard by himself and his counsel * * *.' His reasoning apparently is that he must have a hearing and be represented by counsel at every stage of the proceedings, beginning with the arrest on through to final determination. That is not true. Com. v. Shupp, 365 Pa. 439, 75 A.2d 587. The constitutional right to be heard was amply afforded this appellant at his trial where he was represented by his own counsel, and at which hearing he chose to plead guilty.

Article I, § 10 provides: 'No person shall, for any indictable offense, be proceeded against criminally by information * * *.' Appellant reasons that he could not be indicted by the grand jury since the magistrate before whom the information was sworn held no preliminary hearing, hence he was 'proceeded against criminally by information'. We do not agree. In Com. ex rel. Stanton v. Francies, 250...