November 13, 1963
COMMONWEALTH EX REL. EBERLE, APPELLANT,
Appeal, No. 121, Oct. T., 1963, from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1962, No. 2215, in case of Commonwealth ex rel. Henry Eberle v. A. T. Rundle, Superintendent. Order affirmed.
Henry Eberle, appellant, in propria persona.
Burton Satzberg and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 85]
OPINION BY RHODES, P.J.
Refusal of petition for writ of habeas corpus by Judge WEINROTT of the court below is affirmed in this appeal. Relator avers that he was illegally transferred from Maryland to Pennsylvania, and that he was forced by the police to enter his pleas of guilty. These same issues were raised by relator in a prior petition for a writ of habeas corpus which was dismissed by Judge GUERIN of the Court of Common Pleas No. 1 of Philadelphia County, at No. 4577, June Term, 1960.
"The appellate courts of Pennsylvania have repeatedly held that a petition for habeas corpus which is merely repetitious of previous petitions may be properly dismissed without hearing." Com. ex rel. Norman v. Rundle, 411 Pa. 648, 649, 192 A.2d 419, 420.
[ 202 Pa. Super. Page 86]
To the same effect, see Com. ex rel. Dandy v. Myers, 409 Pa. 419, 420, 187 A.2d 179.
As to relator's second contention, "a prisoner who is regularly indicted and tried under the laws of a state where the crime was committed is not deprived of due process of law under the Fourteenth Amendment by the manner in which he is brought from another jurisdiction." Com. ex rel. Master v. Baldi, 166 Pa. Superior Ct. 413, 421, 72 A.2d 150, 154. See Com. ex rel. Patton v. Tees, 179 Pa. Superior Ct. 605, 608, 118 A.2d 585.
At the time he entered his plea of guilty, relator, who was then represented by counsel, was forty-seven years of age and had spent fourteen years in prison. Having entered a plea of guilty, the admissibility in evidence of relator's alleged confession is not involved and "The rule that the use of any confession obtained in violation of due process requires the reversal of a conviction has no application. Gallegos v. Nebraska, 341 U.S. 947, 71 S.Ct. 1003, 95 L.Ed. 1371."*fn1 Com. ex rel. Roberts v. Keenan, 170 Pa. Superior Ct. 282, 288, 85 A.2d 678, 681, certiorari denied 344 U.S. 841, 73 S.Ct. 54, 97 L.Ed. 655. See, also, Com. ex rel, Hairston v. Banmiller, 194 Pa. Superior Ct. 612, 169 A.2d 571.
As we stated in Com. ex rel. Marshall v. Maroney, 198 Pa. Superior Ct. 85, 87, 181 A.2d 852, 853, quoting Townsend v. Burke, 334 U.S. 736, 738, 68 S.Ct. 1252, 92 L.Ed. 1690, 1692: "In this present case no confession was used because the plea of guilty in open court dispensed with proof of the crime." The case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, has no application here.
The order of the court below is affirmed.
[ 202 Pa. Super. Page 87]
DISSENTING OPINION BY FLOOD, J.:
The petitioner avers that he was placed in isolation and held incommunicado for eight days, that the police would not allow him to consult counsel when he so requested, and that an inspector of police "had conspired with, and successfully interfered with his counsel to such extent that counsel requested the trial judge for permission to withdraw prior to petitioner's trial".
An examination of the original notes of testimony taken February 10, 1948, shows that immediately after the plaintiff's plea of guilty his attorney asked for leave to withdraw his appearance. While there is no indication of any action by the court on this request, evidently permission to withdraw was assumed and the attorney's name appears no more in the proceedings. There is nothing in the record to determine whether defendant expressed any opinion or was asked whether he wished to be represented or whether he waived representation in the proceedings or whether he was advised by his counsel as to the plea. After a brief hearing the defendant was sentenced to 25 to 50 years in the Eastern State Penitentiary. Under these circumstances there should be a hearing to determine whether he was effectively represented at the time of his plea, whether he freely waived the right to representation by counsel in the proceedings, and whether he was indigent, since these matters cannot be clearly ascertained from the record or the notes of testimony. Douglas v. California, 372 U.S. 353, 9 L.Ed. 811 (1963). In my opinion the case should be returned to the court below for this purpose.
MONTGOMERY, J., joins in this dissent.