Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1963, No. 5029, in case of Commonwealth ex rel. Cornelius McCray v. David N. Myers, Superintendent.
Bernard L. Segal, First Assistant Defender, with him Herman I. Pollock, Defender, for appellant.
Gordon Gelfond, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J.
[ 205 Pa. Super. Page 411]
Appellant, Cornelius McCray, was indicted on charges of aggravated robbery, carrying a concealed deadly weapon, and aggravated assault and battery by cutting. He pleaded guilty to the charges of aggravated robbery and carrying a concealed deadly weapon. On the charge of aggravated assault and battery by cutting, however, appellant pleaded not guilty and elected to stand trial by a judge without jury. After some testimony was taken, the Commonwealth, with the approval of the court, agreed to enter a nolle prosequi on this last indictment. At the conclusion of these proceedings, the court sentenced appellant to a term of not less than three nor more than ten years on the aggravated robbery charge and suspended sentence on the charge of carrying a concealed weapon. Appellant was not represented by counsel during these proceedings.
Subsequently, a petition for habeas corpus was filed in the Court of Common Pleas of Philadelphia County and was dismissed after hearing. Appellant was represented at this hearing by the Defender Association of Philadelphia. This appeal followed.
The Supreme Court in Commonwealth ex rel. McCray*fn1 v. Rundle, 415 Pa. 65, 67, 202 A.2d 303, 304 (1964), was presented with the problem which now confronts us: "The single legal question in issue is whether or not he understandingly and intelligently waived his constitutional right to the assistance of counsel."
[ 205 Pa. Super. Page 412]
A complete review of the records of both the trial and the habeas corpus hearing is necessary to answer this question.
Earlier on the day of trial, appellant had appeared on these same charges before Judge Vincent A. Carroll of the Court of Common Pleas of Philadelphia County. At that time, after explaining to the court his efforts to obtain private counsel, he was informed by the court that his attorney would not represent him because an adequate fee could not be paid. Judge Carroll then continued appellant's case so that appellant might obtain the services of the Defender. Instead of being returned directly to the County Prison, however, appellant was held briefly in the cell room in Philadelphia's City Hall and then taken before another judge who ultimately tried him.
Although appellant appeared without counsel, no inquiry was made by the judge into appellant's back-ground prior to his pleas of guilty. After these pleas appellant was asked only his birth date (July 12, 1934), the extent of his schooling (7th grade), and whether he understood the nature of the charges against him and admitted them. Without more, the court proceeded to trial. After the Commonwealth's first witness had testified on direct examination, appellant was asked by the Assistant District Attorney: "Mr. Rieffel: Do you want to ask this witness any questions? The Defendant: I don't have an attorney. By the Court: Q. I thought you were supposed to go ahead without an attorney? A. That is not the understanding that I was being tried without an attorney. Q. You are 28 years old? A. Yes. Mr. Rieffel: There will be additional evidence indicating that ...