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COMMONWEALTH EX REL. DION v. TEES. (11/16/55)

November 16, 1955

COMMONWEALTH EX REL. DION, APPELLANT,
v.
TEES.



Appeal, No. 232, Oct. T., 1955, from order of Court of Common Pleas of Lancaster County, No. 185, Habeas Corpus Docket No. 3, in case of Commonwealth of Pennsylvania ex rel. Charles J. Dion v. Walter Tees, Warden, Eastern State Penitentiary. Order affirmed.

COUNSEL

W.J. Woolston, for appellant.

William C. Storb, District Attorney, for appellee.

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

Author: Ross

[ 180 Pa. Super. Page 84]

OPINION BY ROSS, J.

On this appeal from the dismissal of appellant's petition for a writ of habeas corpus we are presented with only two questions: First, whether Dion, appellant, was deprived of "effective" representation by counsel at his criminal trial because of an alleged short notice to proceed to trial; and second, whether in the instant proceeding it was error for President Judge WISSLER below to decide the petition for habeas corpus without having presided at the hearing on it.

On December 8, 1952, appellant and one Louis Biancone were tried for armed robbery, convicted, and sentenced to the Eastern State Penitentiary for a period of from three to six years. Motion for new trial was made on the ground, inter alia, that appellant was not informed of the charges sufficiently in advance to prepare his defense. The motion was refused and sentence imposed and on appeal we upheld the

[ 180 Pa. Super. Page 85]

    conviction. 175 Pa. Superior Ct. 6, 102 A.2d 199, allocatur refused, 175 Pa. Superior Ct. XXV. Speaking through Judge WOODSIDE, we stated at page 8: "If the defendants deemed themselves unprepared to go to trial they should have moved at this point for a continuance - No such request was made and their defense indicates that they were familiar with the nature of the accusations against them." After thus exhausting the appeal in our State courts and a certiorari having been denied by the United States Supreme Court, appellant petitioned the lower court for a writ of habeas corpus which was dismissed because it raised the identical question. A petition for writ of habeas corpus was then presented to the United States District Court (Eastern District) averring again that Dion had been unprepared to go to trial because he had only five minutes conference with his lawyer before the trial began. The District Court deferred action on the petition "pending Dion's presenting to the State Courts the issue of whether or not he had been given effective counsel." Hope springs eternal. Encouraged by this action of the District Court, Dion began anew his proceedings in the Court of Common Pleas and having been denied, took this appeal.

It is our opinion that we previously decided the issue in his appeal after conviction. The fact that Dion has reframed the issue as a denial of effective counsel does not change his basic contention that he did not have sufficient notice of the charges to prepare for trial. No request for continuance was made, no objection interposed at the trial, and when first raised as a ground for new trial, it was disposed of by all of our State Courts, and in effect by the United States Supreme Court in refusing certiorari. How many times do our courts have to pass upon these matters before they become conclusive? Certainly mere rewording of

[ 180 Pa. Super. Page 86]

    an issue cannot support a whole new ...


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