Charles A. Kerlavage, Pottsville, for appellant.
Robert M. Harris, Dist. Atty., David W. Bechtel and Malcolm D. Reeves, Asst. Dist. Attys., Pottsville, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 110]
Relator filed a petition for writ of habeas corpus in the Court of Common Pleas of Schuylkill County on January 28, 1952. Answers were filed by the District Attorney of Schuylkill County and the Warden of the Eastern State Penitentiary. Hearing was held at which testimony was taken; relator was present and testified. On March 3, 1952, relator's petition was denied, and writ refused. Relator, on April 3, 1952, filed a motion for rehearing; this motion was denied on April 28, 1952. Relator appealed to this Court on July 1, 1952. The appeal was not taken within the time limitation, and therefore will be quashed.*fn1 However, we shall discuss the merits of the appeal.
On October 29, 1934, relator pleaded guilty to two bills of indictment in the Court of Oyer and Terminer of Schuylkill County. Bill No. 1521-A, November Term, 1934, charged armed robbery; and bill No. 1522, November Term, 1934, charged carrying a concealed deadly weapon. Relator was thereupon sentenced to the Eastern State Penitentiary for a term of not less than ten years nor more than twenty years on the robbery charge, and for a term of not less than six months nor more than twelve months on the charge of carrying a concealed deadly weapon. The sentences were consecutive. On December 8, 1943, relator was paroled after his minimum sentences had been commuted. On August 15, 1947, he was recommitted to the Eastern State Penitentiary as a convicted parole violator.
[ 172 Pa. Super. Page 111]
After nearly 18 years*fn2 from the time of his original commitment, relator, without explanation of the delay, presented his petition for writ of habeas corpus in which he complains principally of the fact that no counsel was provided him in the proceedings in the Court of Oyer and Terminer of Schuylkill County when he pleaded guilty and was sentenced on October 29, 1934. The petition contains the usual averment that this was in violation of the Sixth Amendment of the Constitution of the United States. The other averments in his petition are that he was not given a preliminary hearing on the charges; that the charges were not presented to the grand jury; and that he was not 'heard by the court.' He further avers that he was given promises of leniency, which, with intermittent beatings by the state police, induced him to sign various unidentified documents.
At the hearing on February 11, 1952, upon the habeas corpus petition before the Court of Common Pleas of Schuylkill County, relator advised the court that he would represent himself. The evidence taken discloses that subsequent to relator's identification and arrest he admitted committing the armed robbery and signed an uncoerced confession. He was then taken to the scene of the crime where he reenacted it. Before the justice of the peace to whom he was taken for a hearing, he declared that he did not want a hearing by a 'hick squire,' and that he wanted to 'waive a hearing and take the case to court.' In waiving a hearing the relator stated: 'I know my constitutional rights, this isn't the first time I was before a squire.' Relator was thereupon held for the next session of criminal court.
[ 172 Pa. Super. Page 112]
The original bills of indictment (Nos. 1521-A and 1522, November Term, 1934), drawn under the Act of April 15, 1907, P.L. 62, as amended, 19 P.S. § 241, were offered in evidence. Each contained the following endorsement signed in open court by the relator: 'Now, 29th day of Oct., 1934, being charged with the crime named in the within indictment, I hereby notify L. E. Enterline, District Attorney, that I am willing to enter a plea of guilty without the presentation of a bill of indictment before a grand jury and I hereby request and direct that my plea be entered on record.' The pleas were entered accordingly.
It was further shown at the hearing that one of the investigating officers related the details of the crimes to the court, and that there was a conversation between the relator and the presiding judge relative to relator's prior criminal record. It is admitted that relator did not have counsel, and that none was requested. The only officer now surviving, who participated in the investigation and who was present at all stages of the proceedings, denied that relator was beaten or given any promises of leniency, and he testified that the only document which relator signed for the state police was his voluntary confession of the crimes. There was also introduced in evidence a certified copy of relator's application to the Board of Pardons for commutation of ...