Appeal, No. 187, April T., 1954, from order of Court of Common Pleas of Beaver County, March T., 1954, No. 143, in case of Commonwealth of Pennsylvania ex rel. Theodore J. Melensky v. James F. Maroney, Warden, Western State Penitentiary. Order affirmed.
Louis C. Glasso, with him Samuel H. Reighman, for appellant.
J. L. Solomon, First Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 178 Pa. Super. Page 365]
Relator, Theodore J. Melensky, on January 19, 1954, filed, in the Court of Common Pleas of Beaver County, a petition for writ of habeas corpus. He averred that he had not been afforded a fair and impartial trial when he was convicted on June 11, 1952, on a bill of indictment charging burglary, larceny, and receiving stolen goods, at No. 4, June Term, 1952, in the Court of Oyer and Terminer of Beaver County. He had been indicted with two others - Marino Michelotti and Walter Green. Michelotti and Green
[ 178 Pa. Super. Page 366]
entered pleas of guilty before relator's trial. At the trial, Green testified that he, Michelotti, and relator participated in burglarizing the Elks Club, at Rochester, Pennsylvania. There was other testimony as to the identity of relator as a participant. Michelotti refused to testify at relator's trial. Relator was represented by counsel of his own choice. He was sentenced on June 18, 1952, to the Western State Penitentiary for a term of not less than seven and one-half years nor more than twenty years. No motion for new trial had been filed.
The relator further set forth in his petition that his trial counsel failed to serve notice upon him as to the exact date of his trial, that he was not given an opportunity to subpoena his witnesses before trial, and that his trial counsel failed to notify relator's wife and his attorney, S. H. Reichman, Esq., of the Allegheny County Bar as to the date reator was to be tried. Finally, relator contends that he was not represented by competent and adequate counsel at his trial.
The warden of the Western State Penitentiary and the District Attorney of Beaver County filed answers to relator's petition. Hearing was held on April 2, 1954, in the Court of Common Pleas of Beaver County on the petition and answers. At the hearing relator was represented by court-appointed counsel. Relator was present and testified. Both attorneys for relator also testified. Relator's wife was not present at the hearing on his petition for writ of habeas corpus and has since died. On April 9, 1954, the court dismissed relator's petition and on May 25, 1954, filed its opinion.
Relator's trial counsel testified that both relator and his wife, Mrs. Melensky, were told on Friday, June 6, 1952, that his case ...