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September 9, 1964

UNITED STATES of America ex rel. Alfred PARKER
David N. MYERS, Superintendent State Correctional Institution, Graterford, Pennsylvania

The opinion of the court was delivered by: LORD, III

This is a habeas corpus proceeding. Petitioner has raised unsuccessfully in the state courts the argument that the denial of counsel at his preliminary hearing, at which he pleaded guilty, was a deprivation of his constitutional right to counsel. See Commonwealth ex rel. Parker v. Myers, 414 Pa. 427, 200 A.2d 770 (1964).

Lack of counsel at a preliminary hearing constitutes a denial of constitutional rights if, under the circumstances of the particular case, that hearing was a 'critical' stage of the proceedings. In this sense, a preliminary hearing, not normally a critical stage under the procedure of a given state, can nevertheless become critical if events transpire which are likely to prejudice the trial. White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963); DeToro v. Pepersack, 332 F.2d 341, 343 (C.A.4, 1964). In White, relator had plead guilty, without counsel, at the preliminary hearing. He later changed his plea and his uncounseled preliminary guilty plea was used against him. He was convicted. In reversing, the Court said, at page 60 of 373 U.S., at page 1051 of 83 S. Ct.:

 '* * * Whatever may be the normal function of the 'preliminary hearing' under Maryland law, it was in this case as 'critical' a stage as arraignment under Alabama law. For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel. * * *'

 In United States ex rel. Cooper v. Reincke, 333 F.2d 608 (C.A.2, 1964), speaking of White, the court said, at page 611:

 '* * * It is clear that what made the preliminary hearing 'critical' was that a guilty plea had been entered and that the plea had been used against petitioner at trial. * * *'

 The hearing and plea in this case partook of none of the elements of White. The relator did not change his plea, and an examination of the state record, which I have before me, shows that the preliminary plea was not used or introduced at the hearing to determine the degree of guilt. Hence, in the White sense, the hearing here was not a critical stage of the proceedings.

 Thus, in Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961), the Court reversed the conviction of a defendant unrepresented by counsel at the arraignment. The Court held that the arraignment was a critical stage in the Alabama criminal proceeding because certain rights were waived, if not raised at the arraignment. The Court said, at page 54, at page 158 of 82 S. Ct.:

 '* * * Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes. * * *'

 I cannot add to what the Supreme Court of Pennsylvania *fn1" and my Brother, Judge Wood *fn2" said as to the inherent nature of a magistrate's hearing in Pennsylvania. Suffice it to say, that unlike the arraignment in Alabama no rights are lost by pleading. Rather, the hearing is primarily to protect from imprisonment or the requirement of bail when there is no evidence to support a charge against the accused. Commonwealth v. O'Brien, 181 Pa.Super. 382, 124 A.2d 666 (1956). In United States ex rel. Cooper v. Reincke, supra, the court said, at page 612 of 333 F.2d:

 '* * * The Connecticut hearing in probable cause cannot, therefore, be characterized as critical as is arraignment in Alabama. Indeed, it can hardly be termed a proceeding against the accused; to the contrary, it appears to operate entirely for the accused's benefit. And the mere fact that an accused is required to plead does not in itself demand a contrary conclusion where the plea entered is a self-serving denial of guilt. At trial, appellant had every opportunity to present any defense that was available initially. Under these facts failure to supply counsel at this stage in the proceedings cannot be said to be a deprivation of a constitutional right. * * *'

 So here, the nature of a Pennsylvania magistrate's hearing is such that it is not ordinarily a critical stage of the proceedings, and since nothing transpired to make it critical in this case, the lack of counsel abridged no constitutional right.

 One other thing:

 In DeToro, the relator argued that because he had no counsel at the preliminary hearing he was unable to crossexamine the witnesses there. Thus, he argued, he was unable to learn of the state's case and was deprived of this preliminary cross-examination for impeachment purposes at the ...

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