v. Gabel, 79 Pa.Super. 59; Commonwealth v. Cohen, 133 Pa.Super. 436, 1 A.2d 560; Commonwealth v. Cunningham, 137 Pa.Super. 488, 9 A.2d 161; Commonwealth v. Katz, 138 Pa.Super. 50, 10 A.2d 49.
In the Cohen case, this practice was characterized by the Pennsylvania Superior Court as a violation of the rights guaranteed defendants under Article I, Section 9 of the Constitution of Pennsylvania, P.S. That case, however, was before the court on an appeal from the judgment of the lower court and on proper assignments of error. The same question now before me was specifically raised by relator before the Supreme Court of Pennsylvania in his petition there for a writ of habeas corpus. By its refusal to grant the writ and by its language strongly deprecating the use of habeas corpus proceedings as a substitute for assignments of error, the Supreme Court of Pennsylvania in effect held as to that point that it was a trial error which could be raised only directly by appeal and assignment of error and not by habeas corpus proceedings.
The Supreme Court of Pennsylvania is the judge of the law of Pennsylvania. Accepting its interpretation of Pennsylvania law as a correct exposition of the law of the State, our only inquiry can be: Did the State law, as applied, afford the relator due process of law as guaranteed him by the 14th Amendment to the Constitution of the United States. Howard v. Commonwealth of Kentucky, 200 U.S. 164, 26 S. Ct. 189, 50 L. Ed. 421.
Due process of law requires essential fairness and justice in judicial proceedings. In determining whether essential fairness and justice is present we must give consideration to the entire judicial process including reviews on appeal. The question involved may be simply stated: Is the requirement of Pennsylvania law that a defendant take advantage of an error, such as may have been committed here, by appeal and assignment of error rather than by habeas corpus so violative of fundamental concepts of fairness and justice as to constitute a denial of due process? Professor Willoughby in his treatise on the Constitution of the United States 2d edition, volume 3, chapter XCII, sections 1121 to 1143 inclusive, treats the subject at length. He points out that the States are free to set up and determine their own particular methods of procedure. He also points out that those methods of procedure are not required to be ideal, so long as they conform to the essential requirements of fairness and justice including full opportunity to be heard, an impartial tribunal, absence of fraud, bias or prejudice, and freedom from outside duress. Mr. Justice Pitney in the case of Frank v. Mangum, 237 U.S. 309, at page 326, 35 S. Ct. 582, at page 586, 59 L. Ed. 969, stated the requirements of due process of law under the 14th Amendment in the following language: 'As to the 'due process of law' that is required by the 14th Amendment, it is perfectly well settled that a criminal prosecution in the courts of a state, based upon a law not in itself repugnant to the Federal Constitution, and conducted according to the settled course of judicial proceedings as established by the law of the state, so long as it includes notice and a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, is 'due process' in the constitutional sense.'
Applying the principles above discussed, there appears to me no lack of fairness or justice in the requirement of Pennsylvania law that such error (defining reasonable doubt by reference) must be assigned as error on appeal. In the instant case, both defendant and his counsel were present when the Trial Judge instructed the jury to consider a definition of reasonable doubt previously given. Defendant had an opportunity to take exception to that definition by reference and could have asked that the definition be repeated in his presence. Refusal to comply with defendant's request could have been assigned as trial error. Had it been so assigned, it is possible under the decisions of the House, Gabel, Cohen and Cunningham cases, supra, that he might have obtained a reversal of the conviction. It may, however, have been necessary for him to prove actual harm. See the opinion of Mr. Justice Moschzisker in the cases of Commonwealth v. Kelly, 292 Pa. 418, 141 A. 246 and Commonwealth v. Grove, 292 Pa. 418, 141 A. 246.
The procedure afforded by the law of Pennsylvania gives to defendants a right of appellate review of actions prejudicial to their interests. That procedure assures them full opportunity to be heard before courts of competent jurisdiction and according to established modes of procedure. That procedure meets the test set forth by Mr. Justice Pitney in Frank v. Mangum, supra. While the Federal Courts should have no hesitancy in granting relief in cases where defendants have been overreached or have been convicted in trials devoid of the essential elements of fairness, nevertheless, they should hesitate to interfere with fair and reasonable procedural requirements under State law.
The procedural requirements of the law of Pennsylvania as established are fair, afforded relator full opportunity to be heard and the requirement of due process has therefore been satisfied. Further, it appears that the presence of a defendant at every stage of the proceedings against him is not an absolute requirement under the 14th Amendment under all circumstances, e.g. Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674, Frank v. Mangum, supra, and Howard v. Commonwealth of Kentucky, supra. Under the facts of the instant case relator's claim of 'absence' is not well grounded.
The final complaint of the relator is that the sentence of the court was increased in his absence. At the end of the trial the court stated to the relator 'Go up and work in the penitentiary for the next 5 years'. Relator argues that his sentence was therefore a maximum of 5 years and could not have been in excess of 2 1/2 to 5 years under appropriate Pennsylvania Statutes. The Commonwealth, on the other hand, argues that the sentence was one of 5 to 10 years. The latter is apparently the way it was first recorded on the back of the bill of indictment. However that may be, the question was squarely presented to the Supreme Court of Pennsylvania. Without stating its basis therefor the Supreme Court in its opinion regarded this as a sentence of 5 to 10 years. In the course of his opinion, Mr. Justice Bell stated (366 Pa. 124, 75 A.2d 593) 'Probably because of this record the trial judge imposed a sentence of 5 to 10 years on indictment No. 568, subsequently reduced to 3 1/2 to 7 years'. What was meant by the Trial Judge in pronouncing sentence is clearly a question of State law and since the Supreme Court of Pennsylvania has regarded it as a sentence of 5 to 10 years, the subsequent action of the court in changing it to a 3 1/2 to 7 years sentence is therefore a reduction of relator's sentence which certainly violated none of his constitutional rights.
The petition will be dismissed.
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