Appeal, No. 278, April T., 1963, from order of Court of Common Pleas of Allegheny County, Oct. T., 1962, No. 233, in case of Commonwealth ex rel. Ernest Marshall v. James F. Maroney, Superintendent. Order affirmed.
Ernest Marshall, appellant, in propria persona.
Martin Lubow, Assistant District Attorney, and Edward C. Boyle, District Attorney, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 396]
This is an appeal from the dismissal of a writ of habeas corpus by the Court of Common Pleas of Allegheny County, without a hearing.
The petitioner, Ernest Marshall, was indicted and pleaded guilty to three counts of a bill of indictment charging as follows: (1) Possession and control of narcotics; (2) Dealing with narcotics; and (3) Using narcotics. He entered a plea of guilty and was sentenced on November 2, 1959 to a term of 2 1/2 to 5 years in the Western State Penitentiary.
His present petition raises questions of trial errors involving illegal search and seizure. All these complaints were raised in a prior writ of habeas corpus which was dismissed by the Court of Common Pleas of Allegheny County. This action, by the court below, was affirmed, on appeal, by this Court. That appeal raised the same questions as to the legality of arrest and illegal seizure of evidence that this one does.
[ 202 Pa. Super. Page 397]
This Court held: "Since a plea of guilty had been entered, evidence normally used to obtain a conviction is not in issue, nor can such matter, under these circumstances, be raised by habeas corpus." Com. ex rel. Marshall v. Maroney, 198 Pa. Superior Ct. 85, 87, 181 A.2d 852 (1962). The Supreme Court of Pennsylvania and the Supreme Court of the United States denied certiorari. The United States District Court for the Western District of Pennsylvania denied a petition for a writ of habeas corpus.
The only additional complaint contained in this petition is that his counsel was inadequate and in the light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.ed.2d 799, which has resulted in a change in the law of Pennsylvania, the matter deserves extended discussion. The petitioner was represented by Albert Martin, Esquire, of the Allegheny County bar. According to the answer of the District Attorney, Mr. Martin is "skilled, competent and experienced" in practice in the criminal courts, and we assume the court below took judicial notice of this.
The record shows that the case was originally fixed for trial on October 13, 1959 but, because of a crossengagement of his counsel, it was continued to November 2, 1959. At the time of sentence, he entered his of guilty on the advice of counsel and in his presence. It is clear from the record that he had ...