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COMMONWEALTH EX REL. WHERRY v. MARONEY. (09/12/63)

September 12, 1963

COMMONWEALTH EX REL. WHERRY, APPELLANT,
v.
MARONEY.



Appeal, No. 143, Oct. T., 1963, from order of Court of Common Pleas of Montgomery County, Jan. T., 1963, No. 710, in case of Commonwealth ex rel. Ralph E. Wherry v. James F. Maroney, Superintendent. Order affirmed.

COUNSEL

Ralph E. Wherry, appellant, in propria persona.

William C. Cahall, III, Assistant District Attorney, and Richard S. Lowe, District Attorney, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 201 Pa. Super. Page 443]

OPINION BY WRIGHT, J.

Ralph E. Wherry has appealed from an order of the Court of Common Pleas of Montgomery County dismissing his petition for a writ of habeas corpus. It will be necessary to summarize the factual and procedural situation revealed by our examination of the original trial record.

On June 15, 1961, Wherry was arrested on charges of (1) sodomy and (2) corrupting the morals of children. On June 30, 1961, he waived indictment and pleaded guilty to these two charges at Nos. 108 and 108-1 June Term 1961. He was thereupon committed

[ 201 Pa. Super. Page 444]

    to the Montgomery County prison pending psychiatric study under the provisions of the Act of January 8, 1952, P.L. (1951) 1851, 19 P.S. 1166 et seq., commonly known as the Barr-Walker Act. On July 14, 1961, the court ordered that Wherry be taken to the Norristown State Hospital for examination. On August 29, 1961, upon request of the Department of Public Welfare, the observation period was extended for an additional thirty days. On September 26, 1961, a complete written report was submitted to the court below including a psychiatric analysis by Dr. William F. Camp, Superintendent of the Norristown State Hospital, and the recommendation of Dr. John E. Davis, Commissioner of Mental Health.

On October 6, 1961, Wherry was brought into court and sentenced at No. 108 June Sessions 1961, for an indefinite term having a minimum of one day and a maximum of life. In view of Wherry's assertion that he had not been advised by counsel, the sentence was revoked in order that counsel might be appointed. The following colloquy occurred: "The Defendant: Your Honor, I'm not saying that I didn't want that sentence, but if I need help I'll gladly take it. The Court: What do you want me to do, sir? Do you want a lawyer? The Defendant: Well, if he could help me a little bit I would. The Court: I will defer sentence and I will revoke that sentence and I will give you a chance to talk with counsel and I will listen to what he has to say. This matter is continued for two weeks. Mr. Cahall [Assistant District Attorney]: I will refer it to the Voluntary Defender. The Court: See that he gets somebody with some experience. Mr. Cahall: Yes, sir. The Court: We will get you a competent lawyer, sir, and we will give you two weeks to talk with him. The Defendant: All right".

On October 20, 1961, Wherry was again brought before the court. At that time ...


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