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COMMONWEALTH EX REL. FOX v. MARONEY (03/16/65)

decided: March 16, 1965.

COMMONWEALTH EX REL. FOX, APPELLANT,
v.
MARONEY



Appeal from order of Court of Common Pleas of Allegheny County, April T., 1964, No. 1515, in case of Commonwealth ex rel. George E. Fox v. James F. Maroney, Superintendent.

COUNSEL

George E. Fox, appellant, in propria persona.

Louis Abromson, Assistant District Attorney, and Robert W. Duggan, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Cohen.

Author: Roberts

[ 417 Pa. Page 309]

George Fox appeals from the denial, without a hearing, of his petition for a writ of habeas corpus. Fox stands convicted upon a jury's verdict of murder in the first degree and is serving a sentence of life imprisonment. At trial in 1960, appellant-petitioner was

[ 417 Pa. Page 310]

    represented by retained counsel and petitioner did not testify in his own behalf.*fn1 No motion for a new trial or in arrest of judgment was filed and there was no direct appeal from the judgment of sentence. On the present appeal, our conclusion is that the petition was correctly denied.

The first issue raised by the petition for habeas corpus relates to the failure to accord petitioner a preliminary hearing immediately after his arrest. Petitioner learned that the Pittsburgh police wanted to see him and he voluntarily surrendered himself to their custody at 10:00 p.m., July 4, 1959. He made a confession at or about 11:00 a.m. of the next day. According to petitioner's allegations, he did not receive a preliminary hearing until July 8, 1959.*fn2

We are asked to declare the conviction unconstitutional because of the time which intervened between petitioner's surrender and the hearing. If we are to read the petition as alleging that petitioner's confession, given 13 hours after surrender and detention, was involuntary because of this delay, that issue is disposed

[ 417 Pa. Page 311]

    of by our discussion later in this opinion. And aside from any such reading, we can find no allegation of circumstances requiring us to hold there was a denial of any fundamental right. It has been held that, although regrettable and to be discouraged, the absence of an immediate preliminary hearing,*fn3 per se, constitutes no violation of petitioner's constitutional rights. Commonwealth ex rel. Butler v. Banmiller, 398 Pa. 442, 159 A.2d 212 (1960), affirming 9 Chester Co. Rep. 161, 20 Pa. D. & C. 2d 267 (1959). And this Court has held that a four day delay between arrest and ...


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