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COMMONWEALTH EX REL. REICHELDERFER v. BURKE (08/30/54)

: August 30, 1954.

COMMONWEALTH EX REL. REICHELDERFER
v.
BURKE



COUNSEL

Bruce T. Reichelderfer, in pro. per.

No appearance for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

[ 176 Pa. Super. Page 216]

PER CURIAM.

Relator is confined in the Eastern State Penitentiary by virtue of a sentence imposed by the Court of Oyer and Terminer of Northumberland County at No. 1, February Sessions, 1949. The sentence which was for an indefinite term of not less than seven and one-half years nor more than fifteen years was imposed on February 8, 1949, upon a bill of indictment charging statutory rape to which relator had pleaded guilty. On a second bill charging assault and battery, to which relator also pleaded guilty at the same time, the sentence was suspended.

On May 2, 1953, relator filed a petition for writ of habeas corpus in the Court of Common Pleas of Northumberland County. A rule to show cause was issued on May 18, 1953, the return date being June 15, 1953. The court below thereupon appointed counsel for the relator. Oral argument was held before the court, and thereafter the rule to show cause was discharged and the writ refused. This appeal followed.

The question presented by relator on this appeal is limited to whether there was a denial of his constitutional rights when the trial court accepted his plea of guilty to a non-capital charge, relator being unattended

[ 176 Pa. Super. Page 217]

    by counsel and being a minor at the time the plea was entered.

The petition and answer raised no factual issue requiring a hearing. See Com. ex rel. Wolcott v. Burke, 173 Pa. Super. 473, 98 A.2d 206. Relator relies on his youth and on being without counsel and not being advised of his right to counsel at the time he pleaded guilty to the charge of statutory rape. Without more this is not prima facie sufficient to show a denial of fundamental fairness or of the essentials of justice. Com. ex rel. Popovich v. Claudy, 170 Pa. Super. 482, 487, 87 A.2d 489; Com. ex rel. Reggie v. Burke, 170 Pa. Super. 647, 650, 90 A.2d 385.

The following excerpts from the opinion of President Judge Fortney adequately answer relator's contention and argument on this appeal:

'In his petition, relator avers, in support of his contention, that he is being illegally detained, -- (1) At the time sentence was imposed, he was without counsel and was not advised as to his right of counsel. It is to be noted he does not contend he was denied the aid of counsel. The notes of testimony taken at the time of sentence indicate the plea was taken in open court, where the relator was asked by the district attorney * * * whether he desired, in the absence of counsel, to reiterate his plea of guilty which he had entered before the alderman in a preliminary hearing. He answered 'yes sir.' * * * before sentence was passed, relator was asked by the court, 'You realize the seriousness of this offense, do you?' 'A. Yes sir.' Failure to provide counsel when none is requested to to advise a defendant that counsel will be assigned to him, does ...


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