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COMMONWEALTH EX REL. MCCRAY v. RUNDLE. (12/12/63)

December 12, 1963

COMMONWEALTH EX REL. MCCRAY, APPELLANT,
v.
RUNDLE.



Appeal, No. 199, Oct. T., 1963, from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1962, No. 4223, in case of Commonwealth ex rel. Robert McCray v. Alfred T. Rundle, Superintendent. Order affirmed.

COUNSEL

David C. Harrison, with him Matthew Kramer, for appellant.

Charles Jay Bogdanoff, Assistant District Attorney, with him Burton Satzberg and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

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

Author: Rhodes

[ 202 Pa. Super. Page 225]

OPINION BY RHODES, P.J.

This is an appeal from an order of the court below dismissing petition for writ of habeas corpus. Defendant was indicted on four bills of indictment charging various crimes; he was adjudged guilty on all bills, and sentenced on one bill. Sentences were suspended on the other bills.

[ 202 Pa. Super. Page 226]

The question on this appeal is whether the record in this habeas corpus case shows that at the time of trial relator competently and intelligently waived his right to counsel. The order of the court below will be affirmed.

In Gideon v. Wainwright, 372 U.S. 335, 339, 83 S.Ct. 792, 9 L.Ed.2d 799, 802, the court said: "The Sixth Amendment provides, 'In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.' We have construed this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived."

Mr. Justice FRANKFURTER said, in Carter v. I llinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172, 174: "Neither the historic conception of Due Process nor the vitality it derives from progressive standards of justice denies a person the right to defend himself or to confess guilt. Under appropriate circumstances the Constitution requires that counsel be tendered; it does not require that under all circumstances counsel be forced upon a defendant. United States ex rel. McCann v. Adams, 320 U.S. 220, 64 S.Ct. 14, 88 L.Ed. 4." In Moore v. Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167, 172, relied on by this relator, the court stated: "The constitutional right, of course, does not justify forcing counsel upon an accused who wants none. See Carter v. Illinois, 329 U.S. 173, 174." To the same effect, see Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275.

Admittedly, "The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct ...


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