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decided: October 13, 1965.


Appeal from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1964, No. 4674, in case of Commonwealth ex rel. Columbus Ward v. Harry E. Russell, Superintendent.


Columbus Ward, appellant, in propria persona.

Gordon Gelfond 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. Chief Justice Bell. Mr. Justice Roberts concurs in the result. Mr. Justice Cohen dissents.

Author: Bell

[ 419 Pa. Page 241]

This is an appeal from the Order of the Court of Common Pleas No. 7 of Philadelphia County dismissing the petition of Columbus Ward for a writ of habeas corpus.

Ward was indicted for the murder of Mack McClelland Roots whom he killed by stabbing him several times with an ice pick. When Ward came to trial on January 9, 1961, the District Attorney certified that in his opinion*fn* the crime did not rise higher than second

[ 419 Pa. Page 242]

    degree murder. Ward, who was represented by an attorney, then pleaded guilty, and the lower Court after hearing evidence, including his confession which was not objected to, adjudged him guilty of murder in the second degree and sentenced him to 8 to 20 years in the Eastern State Penitentiary. No appeal from this judgment of sentence was ever filed.

On August 10, 1964, Ward filed in the Court below the present petition for habeas corpus. The lower Court did not take testimony but held a hearing only on the legal and Constitutional issues. Ward does not contend that he is innocent of the murder to which he pleaded guilty. He contends, inter alia, that he was denied due process of law (1) when he was interrogated by the police in the absence of counsel; (2) when he was given a preliminary hearing before a magistrate without representation by counsel, and (3) when his confession, which was made when unrepresented by counsel, was admitted into evidence at his trial after he pleaded guilty while represented by counsel.

Assuming that these statements are true, they do not amount to a denial of due process.

Under Pennsylvania law, a person accused of murder need not be provided with counsel immediately

[ 419 Pa. Page 243]

    upon his arrest or before he is questioned by the police, unless an attorney is requested, or unless after Escobedo v. Illinois, 378 U.S. 478, a critical or accusatorial stage had been reached. Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288; Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670.

Three eyewitnesses identified petitioner as the murderer. Moreover, it is significant that the appellant was warned by the police that any statement he made could be used against him at the trial, and while represented by an attorney at the trial, he repeated the statement he made to the police.

Lack of counsel at a preliminary hearing before a Magistrate or Justice of the Peace does not, in and of itself, amount to a deprivation of due process of law. Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283. At the preliminary hearing, the Commonwealth merely attempts to make out a prima facie case for the purpose of having the accused held for a possible indictment of a crime by a grand jury. The defendant is not required to plead or make any statement. In the Butler case, the Court said (pages 324-325): "In the absence of unusual circumstances which transform the proceeding into a critical stage, lack of counsel at preliminary hearing in this Commonwealth does not constitute a deprivation of due process. No such transformation occurred in the instant case."

Where one pleads guilty to a criminal charge before the Court, that is a confession of guilt of the crime or crimes with which he is charged in the indictment. Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 202 A.2d 299, and cases cited therein. The plea also constitutes a waiver of all non-jurisdictional defects and defenses. Commonwealth ex rel. Walls v. Rundle, 414 Pa. 53, 198 A.2d 528, and cases cited therein. If the

[ 419 Pa. Page 244]

    plea is accepted by the Court, the Court's sole inquiry then is to determine (a) the guilt and (b) the degree of guilt and (c) the penalty or sentence.

The crucial and significant points in this case are that (1) at the time Ward entered his plea of guilty, he was represented by counsel and (2) after this guilty plea and while represented by counsel, his prior confession was admitted in evidence without objection. Its admission into the records cannot now be attacked or assigned as error in this collateral proceeding. See Commonwealth ex rel. Walls v. Rundle, 414 Pa., supra; Commonwealth ex rel. Miller v. Myers, 187 Pa. Superior Ct. 565, 146 A.2d 145; and Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965). Cf. also Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564 (1965).

Order affirmed.


Order affirmed.

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