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December 12, 1961


Appeal, No. 232, March T., 1961, from order of Superior Court, April T., 1960, No. 205, affirming order of Court of Common Pleas of Allegheny County, April T., 1960, No. 3157, in case of Commonwealth ex rel. John Simon v. James F. Maroney, Warden. Order affirmed.


Martin Lubow, for appellant.

Samuel Strauss, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Musmanno

[ 405 Pa. Page 563]


During the month of May, 1942, the community in Pittsburgh known as Overbrook was terrorized by sudden appearances and equally rapid disappearances of a person wearing a blue hood who sprang upon women and girls with obvious larcenous and libidinous intent.

On June 2, 1942, the police seized an eighteen-year youth who answered to the description given by the victims of the hooded assailant. It turned out to be John Simon, the appellant in this case. The telltale hood was found on his person. Police investigation, plus investigation by victims pointed quite specifically to him as the person responsible for the Overbrook crimes. He was taken before a magistrate for a preliminary hearing and eventually was brought to court for trial.

The specific charges on which he was indicted were: Robbery of Marian Davis, robbery of Evelyn Williams, statutory rape of Janet Major, statutory rape of Dolores Klein, robbery of Kathryn I. Fisher, and assault and battery with intent to commit rape on Louise Guskey.

On June 18, 1942, in the Court of Oyer and Terminer and General Jail Delivery of Allegheny County, he pleaded guilty to all charges except robbery of Mrs. Fisher. This charge was accordingly withdrawn and the indictment non prossed. The presiding judge sentenced him to prison for an aggregate term of from 20 to 40 years.

In 1952 he filed a petition for a writ of habeas corpus averring that he had been denied due process because he was without an attorney at the proceedings in court on June 18, 1942. After a full hearing, the petition was discharged. At that hearing it developed that the asserted rape of Janet Major had not been consummated. The charge was accordingly changed to

[ 405 Pa. Page 564]

    attempted rape and the sentence on the covering indictment was reduced from 3-6 years to 2 1/2-5 years.

On March 10, 1960, another petition for writ of habeas corpus was filed in the Court of Common Pleas of Allegheny County. A rule to show cause issued and, after the taking of testimony and the presentation of arguments, lasting in all three days, the rule was discharged and the petition dismissed. The petitioner then appealed to the Superior Court which affirmed the decision of the court of common pleas. We granted allocatur.

There is only one question to be decided in this appeal. Was the petitioner denied due process because he had no lawyer to represent him in court on June 18, 1942?

Article I, Section 9 of the Pennsylvania Constitution guarantees to every accused the right to counsel. In capital cases this provision is mandatory. Whether the defendant desires or does not desire to be represented by counsel, an attorney must be provided in murder cases. However, where non-capital charges are involved, the defendant himself determines whether he wishes to proceed without the benefit of a lawyer's advice and assistance.

The Commonwealth has indicated that since Simon did not request counsel at the time of his hearing in court, no constitutional right was denied him. It is true that decisions of this and of the Superior Court support this position, but such a view is not supportable if the facts in any particular case reveal that the circumstances surrounding the trial or hearing were such that the fundamentals of a fair trial were vitiated because of absence of counsel. For instance, if the defendant were deaf or blind, or otherwise so disabled that he could not adequately understand or follow the court proceedings, it would be a sheer mockery of law and justice to assume that he had had a fair trial in

[ 405 Pa. Page 565]

    the absence of counsel, even though he did not ask for one.

Constitutional guarantees are intended to achieve human justice and not merely to erect academic fences which may or may not keep out flagrant inequities which no civilized government would condone. Thus, it may not be argued that since the Constitution says only that the accused "hath a right to be heard by himself and his counsel," the Commonwealth is not required to supply counsel where the circumstances dictate the need for an attorney, even if the defendant does not ask for one.

And that brings us to the crucial issue in this case. The defendant was not wholly a normal person, using the word normal not in the criminological sense (because it could be argued that every criminal is nonnormal) but strictly from a mental point of view. A behavior clinic study made of the defendant shortly after his arrest revealed him to be a high grade moron with an intelligence quotient of 59. Counsel for the defendant therefore argues in this appeal that since the defendant was young and of low mentality the absence of counsel constituted a denial of due process which entitles him to release from custody. In this connection he cites the case of Commonwealth ex rel. Swieczkowski v. Burke, 173 Pa. Superior Ct. 363, 366, where the Superior Court said: "Youth, lack of education, inexperience with the intricacies of criminal procedure, improper conduct on the part of the court or prosecuting officials, and the complicated nature of the offense charged may, in some combination, constitute the 'ingredient of unfairness' which renders the absence of counsel at sentencing a denial of due process."

But the hypotheses enumerated in that case do not concatenate in the case at bar. There were no "intricacies of criminal procedure," no "improper conduct on the part of the court or prosecuting officials," and

[ 405 Pa. Page 566]

    nothing complicated about the charges of robbery and rape. We dismiss without comment the statement of defendant's counsel at the oral argument that he (counsel) did not know the meaning of robbery and rape until he came to those subjects in law school!

In the Federal criminal courts, the employment of counsel for defendants is imperative. By virtue of the Sixth Amendment to the United States Constitution, "counsel must be furnished to an indigent defendant prosecuted in a federal court in every case, whatever the circumstances." (Foster v. Illinois, 332 U.S. 134.) However, the Supreme Court of the United States held in that case, that "Prosecutions in State courts are not subject to this fixed requirement." But there is this modification. "process of law in order to be 'due' does require that a State give a defendant ample opportunity to meet an accusation."

What is the criterion for determination of "dueness" in process of law? Justice FRANKFURTER declared that if, because of absence of counsel, "an ingredient of unfairness actively operated in the process that resulted in his [the defendant's] confinement," then there has been lack of due process.

The touchstone, therefore, to apply in the case at bar is the rule of "ingredient of unfairness." The Supreme Court said in the Foster case that the mere fact that the record did not show that the defendant had been offered the benefit of counsel did not of itself prove absence of due process: "We thus have in effect the bald claim that, merely because the record does not disclose an offer of counsel to a defendant upon a plea of guilty, although the court before accepting the plea duly advised him of his 'rights of Trial' and of the ...

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