Appeal, No. 233, Jan. T., 1964, from order of Superior Court, Oct. T., 1963, No. 199, affirming 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 reversed.
David C. Harrison, with him Matthew Kramer, for appellant.
Charles Jay Bogdanoff, Assistant District Attorney, with him Burton Satzberg and Thomas M. Reed, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
The appellant, Robert McCray, after indictment was tried before a judge without a jury for: (1) Conspiracy; (2) Statutory rape; (3) Assault and battery; (4) Contributing to the delinquency of a minor. He was convicted on all four indictments and sentenced to the Eastern State Correctional Institution for an indeterminate term of from five to ten years.
An appeal was timely filed to the Superior Court, pro personam, which was eventually quashed because of failure to properly perfect it.
Subsequently, a petition for habeas corpus was filed in the Court of Common Pleas of Philadelphia County which was dismissed. On appeal, the Superior Court in a four to three decision affirmed this order. We granted allocatur and this appeal is presently before us.
At the above trial, the defendant, McCray, was unrepresented by counsel. The single legal question in issue is whether or not he understandingly and intelligently waived his constitutional right to the assistance of counsel. We conclude that he did not.
One McWarren was tried jointly with McCray on the same charges. When the case was called for trial,
a representative of the Philadelphia Defenders' Office appeared on behalf of McWarren, but declined to represent McCray because he believed a conflict in interest existed. The assistant district attorney then questioned McCray as follows: "Q. McCray, stand up. Do you have a lawyer? A. No, sir. Q. Can you afford a lawyer? A. I have tried unsuccessfully to retain counsel. I was talking to Mr. Cain. ...