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COMMONWEALTH EX REL. GERCHMAN v. MARONEY. (06/11/64)

June 11, 1964

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



Appeals, Nos. 101 and 102, April T., 1964, from orders of Court of Common Pleas of Beaver County, Dec. T., 1963, Nos. 264 and 265, in cases of Commonwealth ex rel. Carl G. Gerchman v. James F. Maroney, Superintendent; and Commonwealth ex rel. Delmas Breman McFadden v. Same. Orders affirmed.

COUNSEL

Hymen Schlesinger, with him M. Y. Steinberg, for appellants.

Edward J. Tocci, Assistant District Attorney, with him Robert J. Masters, District Attorney, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 203 Pa. Super. Page 294]

OPINION BY ERVIN, J.

In these two appeals in habeas corpus proceedings an attack is made upon the constitutionality of the Barr-Walker Act, January 8, 1952, P.L. (1951) 1851, 19 PS § 1166. They were argued together and will be disposed of in one opinion.

An examination of the original trial records will show that on August 29, 1962 Carl G. Gerchman plead guilty to the charge of assault with intent to ravish and on December 14, 1962 he was sentenced under the provisions of the above mentioned act to "pay the costs of prosecution, a fine of $1.00, be committed to the Western Correctional Diagnostic and Classification Center to undergo imprisonment of not less than one day not more than the term of the natural life of the said Carl G. Gerchman. ..." No direct appeal was taken from this sentence. Gerchman had been represented at his plea of guilty and sentence by an attorney of his own choice. On November 13, 1963, approximately eleven months after the original sentence, he

[ 203 Pa. Super. Page 295]

    filed a petition in the court below in a habeas corpus proceeding. On February 4, 1964 the writ of habeas corpus was dismissed and thereafter the present appeal was taken.

Delmas McFadden was found guilty by a jury on October 1, 1955 of the crimes of sodomy and solicitation to commit sodomy. On December 6, 1955 he was sentenced, under the provisions of the above mentioned act, "to pay the costs of prosecution, a fine of $1, and committed to the Western Correctional Diagnostic and Classification Center to undergo imprisonment of a minimum of not less than one day and a maximum of his natural life. ..." No direct appeal was taken from that sentence. McFadden had been represented at his trial and sentence by two lawyers of his own choice. The opinion of the court below states that McFadden was subsequently released on parole and thereafter recommitted by the Board of Parole. On November 13, 1963, approximately eight years after the original sentence, he filed a petition in the court below in a habeas corpus proceeding. On February 4, 1964 the writ of habeas corpus was dismissed and thereafter the present appeal was taken.

In the habeas corpus proceedings both defendants were represented by two attorneys who had not represented the defendants originally.

An examination of the original record in the Gerchman case reveals that on Saturday, July 28, 1962, at about 4:30 or 5:00 o'clock in the afternoon, he saw a young girl standing on the corner; he stopped his car and asked her if she wanted to go for a ride with him; she told him she was waiting for someone who was to take her to see about getting work; he then told her that he was the person who was sent to take her to the place for the work; she then got in the car and he drove her to a wooded section; he tried to get her to respond to his advances but she refused to do so; he

[ 203 Pa. Super. Page 296]

    then hit her in the face, grabbed her by the hair, some of which came out, tore off her clothing and tied her naked body to a tree; he bit her breasts and then with a piece of broken glass cut the letter "K" on one of her breasts; he left her for a short while but then returned and untied her, placing his shirt upon her naked form, and before leaving ...


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