Commonwealth ex rel. Richter v. Burke

• Decision Date: 16 March 1954
• Citation: 103 A.2d 293,175 Pa.Super. 255
• Parties: COMMONWEALTH ex rel. RICHTER v. BURKE, Warden.
• Court: Pennsylvania Superior Court

103 A.2d 293

175 Pa.Super. 255

COMMONWEALTH ex rel. RICHTER v. BURKE, Warden.

Superior Court of Pennsylvania.

March 16, 1954

Habeas corpus proceeding. The Court of Common Pleas No. 5 of Philadelphia County, as of March Term, 1952, No. 63, Charles L. Guerin, J., denied writ, and the relator appealed. The Superior Court, No. 166, October Term, 1953, Woodside, J held that netwithstanding contentions of the relator to the contrary, record support conclusion that he had notice of the charges against him at time he was brought to trial, and that his representation by court appointed counsel was adequate.

Order affirmed.

William Richter, in pro. per.

Armand Della Porta, Samuel Dash, Asst. Dist. Attys., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth Dist. Atty., Philadelphia, for appellee

Before RHODES, P. J., and HIRT, RENO, ROSS GUNTHER, WRIGHT and WOODSIDE, Jj.

WOODSIDE Judge.

This is an appeal by William Richter from the order of the Court of Common Pleas No. 5 of Philadelphia, dismissing his petition for writ of habeas corpus and remanding him to the custody of the warden of the penitentiary.

On January 18, 1946 relator, while a fugitive, was indicted on six bills of indictment, each charging burglary and receiving stolen goods.

On April 9, 1947 he was apprehended in Richmond, Virginia, and returned to Philadelphia where he was confined in the county prison as a parole violator. Three months later, on July 10, 1947, he was tried on the above bills of indictment. In the course of the trial the relator withdrew his previous pleas of not guilty to these bills of indictment and entered pleas of guilty thereon. The court imposed judgment of sentence of eight to twenty years in the Eastern State Penitentiary on the first of these bills.

On March 31, 1952, the instant petition for writ of habeas corpus was filed by the relator averring that he had been denied due process of law on the trial of his case.

It is well established in this Commonwealth that in habeas corpus proceedings the judgment of conviction carries with it a presumption of regularity, and when one undertakes to overcome it, his evidence should be clear and convincing. Commonwealth ex rel. Howard v. Claudy, Pa.Super., 1954, 102 A.2d 486.

The relator has the burden of convincing the court of the truth of his averments. Commonwealth ex rel. Johnson v. Dye, 1946, 159 Pa.Super. 542, 49 A.2d 195.

The relator first contends that he had no notice of the charges against him at the time he was brought to trial. The records support a contrary conclusion. At the 1947 trial an officer categorically testified that the relator was informed of the charges at the time of his arrest and that in response thereto he admitted participation in the crimes. Although given the opportunity the relator did not take the stand at that time nor did he offer evidence contradictory to the testimony of the officer. Furthermore, the relator, at no time during the course of that trial informed the trial judge of this purported lack of knowledge.

The relator has four times before been sentenced and served time for similar offenses. ‘ His previous experience in criminal proceedings is pertinent in ascertaining whether he was aware of the gravity of the offenses and was competent to protect his legal and constitutional rights. See Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595.’ Commonwealth ex rel. Martin v. Baldi, 1953, 174 Pa.Super. 111, 115, 100 A.2d 142, 144.

It is next contended that the trial court abused its discretion in refusing relator's request for continuance for the purpose of engaging counsel of his own choosing. There is likewise no merit to this contention. It is well established in this Commonwealth that an application for a continuance is addressed to the sound discretion of the trial court whose action will not be disturbed unless that discretion has been abused. Commonwealth v. Donnelly, 1926, 86 Pa.Super. 427, 430, 431. The relator had three months time to employ an attorney. If he desired counsel he should have employed him during the time elapsing between his arrest and the day he was to appear in court. ‘ He could not delay until an indictment was returned and then for the first time attempt to engage counsel and start on the preparation of his defense. The law contemplates and brooks no such delay on the part of defendants in criminal cases.’ Commonwealth ex rel. Hullig v. Ashe, 1941, 145 Pa.Super. 11, 14, 20 A.2d 852, 854.

The trial court appointed competent counsel to represent the relator and at no time during the trial was objection made to this appointment.

The third contention of the relator is that he was not adequately represented by his court appointed counsel. As was said in Commonwealth v. Thompson, 1951, 367 Pa. 102, 109, 79 A.2d 401, 404‘ * * * it is easy to condemn the exercise of counsel's judgment after the case is lost which would be praised if the...