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COMMONWEALTH EX REL. MCKEE v. RUSSELL (12/16/65)

decided: December 16, 1965.

COMMONWEALTH EX REL. MCKEE, APPELLANT,
v.
RUSSELL



Appeal from order of Court of Common Pleas of Crawford County, Feb. T., 1965, No. 93, in case of Commonwealth ex rel. Gerald McKee v. Harry E. Russell, Superintendent.

COUNSEL

Gerald McKee, appellant, in propria persona.

Vincent J. Pepicelli, District Attorney, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this dissenting opinion.

Author: Per Curiam

[ 207 Pa. Super. Page 171]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Hoffman, J.:

This is an appeal from an order of the lower court dismissing appellant's petition for writ of habeas corpus after a hearing. The single legal question of importance in this case is whether appellant, when entering his guilty plea before the late Judge Mook, had understandingly and intelligently waived his right to counsel.

To sustain its burden of proving that appellant did intelligently and understandingly waive this right, the Commonwealth offered appellant's signed statement in which he pleaded guilty and waived the appointment of counsel. Such a signed statement alone could not establish that appellant effectively waived his right to counsel. Commonwealth ex rel. Ross v. Botula, 206 Pa. Superior Ct. 1, 211 A.2d 42 (1965).

In addition, however, the Commonwealth offered the testimony of Judge Richard P. Thomas who was, at the time of the original proceedings, District Attorney of Crawford County. Judge Thomas testified as to the general practice of Judge Mook before allowing an accused to enter a guilty plea without counsel. He stated that Judge Mook would ask the defendant if he had counsel, and if he was aware that he had a right to counsel. If defendant's answer was in the negative, Judge Mook would tell the defendant that the court would appoint counsel for him. If defendant indicated that he ...


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