Appeal from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1964, No. 1789, in case of Commonwealth ex rel. Leon Butler v. A. T. Rundle, Superintendent.
Leon Butler, appellant, in propria persona.
Abner H. Silver and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs in the result. Mr. Justice Cohen would grant a new trial.
The facts of the case before us need be presented only in their brief essentials. In 1940, Leon Butler was arrested and, during his arrest, confessed to murder. Butler had no counsel at his preliminary hearing,
although two court-appointed attorneys represented him when the case was tried before a jury on defendant's plea of not guilty. The confession was introduced into evidence and the trial transcript is replete with testimony by the defense attempting to establish that Butler was beaten and coerced into giving an involuntary confession.
Basing his petition on these central facts, as well as others, Butler sought a writ of habeas corpus in 1964. In essence, the petition framed two significant questions: (1) Does lack of counsel at preliminary hearing in this Commonwealth, in and of itself, amount to a deprivation of due process of law? and (2) Is the ruling of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), to be given retroactive effect? Answering both questions in the negative, the Court of Common Pleas No. 1 of Philadelphia County dismissed the petition without hearing.*fn1
Petitioner does not allege, nor does the record show, any consequences which flowed from the absence of counsel at the preliminary hearing. No legal right
was lost; no factual or legal disadvantage was suffered. Petitioner's flat assertion is that lack of counsel at this stage of the proceedings, in itself, violates due process. Reliance is placed on Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), by the petitioner. More ...