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COMMONWEALTH v. KADIO (07/21/55)

July 21, 1955

COMMONWEALTH
v.
KADIO, APPELLANT.



Appeal, No. 38, Oct. T., 1955, from order of Court of Quarter Sessions of Philadelphia County, Nov. T., 1937, No. 460, in case of Commonwealth of Pennsylvania v. Peter Kadio. Order affirmed.

COUNSEL

Peter Kadio, appellant, in propria persona, submitted a brief.

Christopher F. Edley, Assistant District Attorney, with him Victor Wright, Assistant District Attorney, and Samuel Dash, Acting District Attorney, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, Woodside, and Ervin, JJ. (hirt, J., absent).

Author: Ross

[ 179 Pa. Super. Page 197]

OPINION BY ROSS, J.

This is an appeal from the dismissal of a petition for a writ of error coram nobis by the Court of Quarter

[ 179 Pa. Super. Page 198]

Sessions of Philadelphia County. Appellant is currently incarcerated at Dannemora, New York, as a second felony offender. He seeks by the instant proceeding to expunge from the record here his conviction in 1937 for assault and battery, assault and battery with intent to steal, larceny from the person and receiving stolen goods. His purpose is, of course, to remove this "first" felony from his record and thereby reduce his sentence in New York.

In 1937 appellant was tried in Philadelphia County by a jury and convicted, after pleading not guilty. He served the sentence imposed and took no further action until July 14, 1954, when he instituted the present proceedings. He bases his petition for coram nobis on the ground that his constitutional right to due process of law was violated in that he had no counsel, he was not informed of his right to counsel, and that no counsel was appointed to defend him at his trial. He also alleges that he pleaded guilty to the charges at the suggestion of the district attorney and the presiding judge. His petition, however, has attached to it a copy of the indictment which shows that he pleaded not guilty but that a verdict of guilty was returned. Appellant is bound by the record in this regard just as he would be had this been a habeas corpus proceeding. Whether he pleaded guilty or not guilty, however, has little bearing on the question of his right to counsel since, in a proper case, a man in entitled to counsel irrespective of his plea.

Appellant relies principally upon Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127, wherein the United States Supreme Court held that under the particular facts of the case the trial court erred in failing to inform the defendant of his right to counsel. Mr. Justice REED, in delivering the opinion of the Court, stated the test in non-capital cases to

[ 179 Pa. Super. Page 199]

    be: "Where the gravity of the crime and other factors - such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto - render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, ... the accused must have legal assistance under the Amendment whether he pleads guilty or elects to stand ...


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