The opinion of the court was delivered by: CLARY
Alvin R. Drew is presently confined at the State Correctional Institution in Graterford, Pennsylvania, pursuant to conviction in the Philadelphia County Court of Common Pleas on charges of illegal possession and sale of narcotics. An appeal was taken to the Superior Court of Pennsylvania where the judgment of conviction and sentence of 7 1/2 to 30 years were affirmed. Commonwealth v. Drew, 190 Pa.Super, 478, 154 A.2d 285 (1959). Relator was not personally notified of the Superior Court's decision until after the expiration of the time for appeal. Thus, review by the Supreme Court of Pennsylvania and the Supreme Court of the United States was not available.
Relator filed a petition for writ of habeas corpus in the Court of Common Pleas No. 4, Philadelphia County, June Term 1960, No. 1491, which was dismissed on July 29, 1960. The dismissal was affirmed by the Superior Court at October Term 1960, No. 379 on March 22, 1961, 194 Pa.Super. 329, 169 A.2d 126. The Pennsylvania Supreme Court refused allocatur and the United States Supreme Court denied certiorari at No. 478, October Term 1961, 368 U.S. 957, 82 S. Ct. 401, 7 L. Ed. 2d 389.
A hearing was held in this matter before the Court on December 7, 1962. Relator and other witnesses were present and testified, and both counsel have briefed all questions presented. After close consideration of the testimony, briefs, petition and amended petition, the Court feels that relator's position can be accurately stated as follows:
(a) The trial Court's denial of relator's request for a continuance to find Thomas Sherwood, an alleged alibi witness, was a denial of liberty without due process of law.
(b) The trial Court's denial of relator's request for a continuance to call Irving Carter, a witness connected with the transactions, and the refusal of the Court to compel the Commonwealth to call him was a denial of liberty without due process of law.
Alvin Drew was arrested in Philadelphia on January 29, 1958 for the alleged possession and sale of narcotics and indicted on February 11, 1958. On February 26, 1958, Drew's counsel received notice that trial was set for March 5, 1958. On the afternoon of that day, Drew's counsel went before the trial judge and advised him that the defense would be an alibi, but that time was needed to find Thomas Sherwood, with whom Drew claimed to have been in New York at the time of the offense. The trial judge stated that counsel had had sufficient time to work it out and the motion for continuance was refused.
On the morning of the last day of trial, Monday, March 10, 1958, Drew's counsel informed the trial Court that Sherwood had been located in New York, but was reluctant to come to Philadelphia. The Court stated that, 'if he is here by 2:00 P.M., we will take his testimony, otherwise there will be no more witnesses.' Sherwood did not appear and no further continuance was allowed.
Two cases are offered in support of relator's argument that the trial Court's refusal to grant a continuance to enable him to obtain the testimony of Sherwood was a denial of due process. Paoni v. United States, 281 F. 801 (3 Cir. 1922) and MacKenna v. Ellis, 280 F.2d 592 (5 Cir. 1960).
In Paoni v. United States, the Federal District Court refused defendant's motion for a continuance which was requested when defendant's witnesses could not be produced in time. On a writ of error, the Third Circuit Court of Appeals held that the lower Court had abused its discretion. The Sixth Amendment gives defendants in Federal Courts a right to compulsory process for witnesses. While this is not an absolute right, the trial Court in Paoni gave no reason on the record for the refusal, and thus a new trial was necessary.
Relator does not urge that the Sixth Amendment's right to compulsory process is applicable to the states under the Fourteenth Amendment. However, he does urge that standards established under the Sixth should be considered in judging the fundamental fairness of state actions. It is in this respect that MacKenna v. Ellis is cited. This case came before the Fifth Circuit on a petition for writ of habeas corpus by a state prisoner who had been brought to trial at such a time as to make it impossible for his witnesses to appear. The Court held, citing Paoni, that this factor, counted with several others, resulted in a denial of liberty without due process. The several other factors involved -- short notice of trial, appointment of inexperienced counsel over defendant's protest, conflict of interest of defendant's counsel, and lack of vigorous efforts by defendant's counsel.
There can be little debate that the practice in both the Federal Courts and the Courts of Pennsylvania is that questions of continuance must be decided by the sound discretion of the trial Court. In Franklin v. South Carolina, 218 U.S. 161, 30 S. Ct. 640, 54 L. Ed. 980 (1910), the United States Supreme Court found that there was no denial of due process in the refusal of a continuance by the state Court requested by defendant's counsel who had not had time to read notes of testimony taken before a Coroner. The Court said 218 U.S. at page 168, 30 S. Ct. at page 643:
'It is next contended that the plaintiff in error was denied due process of law in the refusal of the court to continue his case when the same was called for trial. It is elementary that the matter of continuance rests in the sound discretion of the trial court, and its action in that respect is not ordinarily reviewable. It would take an extreme case to make the action of the trial court in such a case a denial of due process.'
See also: Frohwerk v. United States, 249 U.S. 204, 210, 39 S. Ct. 204, 63 L. Ed. 561 (1919). The Pennsylvania Court which tried relator was likewise acting under a similar practice of trial Court discretion. Commonwealth v. Hicks, 173 Pa.Super. 395, 397-398, 98 A.2d 478 (1953); Commonwealth v. Speroff, 169 Pa.Super. 197, 199, 82 ...