Appeal from order of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1964, No. 4786, in case of Commonwealth ex rel. William McCormick v. Harry E. Russell, Superintendent.
Joseph M. Smith, Assistant District Attorney, with him F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellant.
Marvin I. Block, with him Harry Aaron Rubin, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.
[ 206 Pa. Super. Page 461]
On December 1, 1964, William McCormick, presently an inmate of the State Correctional Institution at Huntingdon, filed in Court of Common Pleas No. 1 of Philadelphia County a petition for a writ of habeas corpus. The following day Judge Chudoff granted a rule to show cause why the writ should not issue, returnable December 22, 1964. An answer was filed by the superintendent of the institution, but no answer was filed by the district attorney. On May 12, 1965,
[ 206 Pa. Super. Page 462]
President Judge Gold granted the writ.*fn1 The Commonwealth has appealed.
The docket entries in the Court of Quarter Sessions of Philadelphia County at October Term 1960 disclose that, on October 31, 1960, McCormick was indicted on Bill No. 2606 charging assault and battery, and on Bill No. 2607 charging assault with intent to rob and robbery. The date of arraignment was November 21, 1960, at which time McCormick pleaded not guilty. On December 5, 1960, McCormick waived a jury trial and the case was heard non-jury by Honorable Peter F. Hagan. A finding of not guilty was entered on Bill No. 2606, and a finding of guilty was entered on Bill No. 2607. McCormick was sentenced on Bill No. 2607 to serve not less than one nor more than five years in the State Correctional Institution at Philadelphia. The effective date of his sentence was October 10, 1960, with the minimum expiring October 10, 1961, and the maximum expiring October 10, 1965.
On March 23, 1961, McCormick was transferred to the State Correctional Institution at Rockview. On October 10, 1961, he was released on parole. On February 11, 1963, he was recommitted as a technical parole violator. On April 11, 1963, he was reparoled. While still on parole, McCormick was arrested on charges of burglary and larceny in Delaware County. On October 7, 1963, he entered a plea of guilty in the Court of Quarter Sessions of Delaware County. He
[ 206 Pa. Super. Page 463]
was sentenced on Bill No. 441 September Sessions 1963 to serve not less than four nor more than twelve months in the Delaware County Prison, effective June 22, 1963. He was released from the Delaware County Prison on November 22, 1963, and was on that date recommitted to the Eastern Correctional Diagnostic and Classification Center as a convicted parole violator. On February 26, 1964, McCormick was transferred to the State Correctional Institution at Huntingdon. His maximum sentence presently expires June 12, 1967.
McCormick's petition for the writ alleges that his constitutional rights were violated (1) "because he was not given counsel when accused of said crime, at which time he made a statement"; and (2) because he was not afforded counsel at his preliminary hearing, despite his request therefor.*fn2 It is the position of the district attorney on this appeal that, even though McCormick's allegations were undenied, "the facts he avers do not constitute a denial of due process". It is argued that there is no allegation that McCormick's statement was incriminatory, or that it was involuntary, or that it ...