April 15, 1954
COMMONWEALTH EX REL. VELOS
TEES. APPEAL OF VELOS
Stephen Velos, in pro. per.
Howard L. Criden, Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 175 Pa. Super. Page 298]
The petitioner in this habeas corpus proceeding was charged in three indictments along with two other defendants with burglary and larceny. One of the bills charged the larceny of $6,000; the others involved the taking of personal property of value from an automobile service station and from a produce market. Petitioner's co-defendants pleaded guilty to the charges. Petitioner pleaded not guilty and waived a jury trial. He was found guilty after trial by Judge Guerin and was sentenced on all three convictions to two terms of imprisonment in the Eastern Penitentiary of from 10 to 20 years, and a third term of from 5 to 10 years, all to be served consecutively. He pleaded guilty to a fourth bill charging burglary and larceny but was not sentenced on that conviction. The lower court dismissed the petition for habeas corpus without hearing.
In this appeal from that order appellant contends that he did not intelligently waive his 'constitutional prerogative to a trial by jury and the assistance of counsel'. Failure to provide counsel when none is requested is not a denial of due process in a non-capital
[ 175 Pa. Super. Page 299]
case. Com. ex rel. Uhler v. Burke, 172 Pa. Super. 108, 91 A.2d 913. The provision of our State constitution, art. 1, § 9, according defendants the right to be heard by counsel does not require court assignment of counsel in non-capital cases. Commonwealth ex rel. Townsend v. Burke, 361 Pa. 35, 63 A.2d 77. In the transcript of the proceedings of the trial of appellant on the criminal charges, the following appears of record: 'Defendant Velos has no attorney and on inquiry states he does not wish counsel and declines to have the Court appoint counsel, and signs waiver of jury trial.'
The court record of the trial of a criminal case may relevantly be considered in a habeas corpus proceeding. Com. ex rel. Chambers v. Claudy, 171 Pa. Super. 115, 90 A.2d 383. And in such proceeding the relator is bound by the record until the contrary affirmatively and competently appears. Com. ex rel. Comer v. Maroney, 174 Pa. Super. 494, 102 A.2d 277. The record of appellant's trial is not questioned. It thus appears that the trial judge, out of consideration for the petitioner, when on trial for the offenses, more than complied with the requirements of due process. Counsel was offered him although none was requested. And having refused the assignment of counsel appellant cannot now assert that he did not intelligently waive a jury trial. Counsel if accepted would have decided that question for him. Moreover the record discloses that he was in no wise prejudiced. During the course of the trial or at the time of sentence he frankly admitted his guilt on all three bills.
In the remaining questions raised by appellant's petition he sought to make this habeas corpus proceeding the substitute for an appeal. This cannot be done. Com. ex rel. Tokarchik v. Claudy, 174 Pa. Super. 509, 102 a.2d 207.
[ 175 Pa. Super. Page 300]
The petition in this case in the light of the record was not self-sustaining and the court therefore was right in refusing it without hearing. 'A hearing upon a petition for a writ of habeas corpus is not an indispensable requisite, and no purpose is served by awarding a rule to show cause, where the allegations of the petition are fully refuted by the trial or court record.' Com. ex rel. Chambers v. Claudy, supra.
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