Appeal, No. 229, Jan. T., 1963, from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1963, No. 2652, in case of Commonwealth ex rel. James Cater v. David N. Myers, Superintendent. Order affirmed.*fn1
W. Bradley Ward, with him Joseph L. Ehrenreich, for appellant.
Charles Jay Bogdanoff, Assistant District Attorney, with him Louis F. McCabe, Richard A. Sprague and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
This is an appeal from the Order of the Court of Common Pleas No. 2 of Philadelphia County denying Relator's petition for a writ of habeas corpus.
Cater (Relator) was convicted of murder in the first degree and sentenced to death.*fn* The pertinent facts surrounding this homicide were stated in Commonwealth v. Cater, 396 Pa. 172 (p. 175):
"On the evening of March 26, 1957, three young men planned and perpetrated a robbery at the pharmacy of Jacob Viner, a North Philadelphia druggist. One of the robbers accompanied Viner to the rear of the establishment, and after warning the druggist to 'shutup,' shot and killed him in the presence of his wife. The pharmacy's cash register was rifled of some $34 and the trio made good their escape.
"Subsequently, James Cater, Robert Lee Williams, and George Lee Rivers, ... were arrested and indicted for the murder of Viner. All three, confessing to their participation in the crime, entered pleas of guilty to murder generally, whereupon the trial court adjudged each to be guilty of murder in the first degree."
All three were eventually sentenced to death.*fn** Subsequently Cater applied to the Board of Pardons for commutation of the death penalty and on October 10, 1961, the application was argued before the Board. On December 21, 1962, Cater's counsel requested reargument. The Board on January 2, 1963, granted reargument.
On March 20, 1963, Cater's counsel presented oral argument before the Board of Pardons in support of Cater's application for commutation of the death sentence to life imprisonment. The Board of Pardons on March 27, 1963, denied the application. Thereafter Cater filed a petition for a writ of habeas corpus in the lower Court. The lower Court granted a rule to show cause why the writ should not be issued. On April 23, 1963, the ...