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COMMONWEALTH v. PHILLIPS (06/17/66)

decided: June 17, 1966.

COMMONWEALTH
v.
PHILLIPS, APPELLANT



Appeals from judgment of Courts of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace of York County, April T., 1955, Nos. 197, 198, and 199, in case of Commonwealth of Pennsylvania v. Kenneth Phillips.

COUNSEL

Harry L. McNeal, Jr., for appellant.

John T. Miller, First Assistant District Attorney, with him John F. Rauhauser, Jr., District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J.

Author: Jacobs

[ 208 Pa. Super. Page 122]

On August 2, 1965 appellant, Kenneth Phillips, was granted a writ of habeas corpus by the Court of Common Pleas of York County. The basis for issuing the writ was the fact that he was unrepresented by counsel and did not intelligently waive counsel at the time of a 1955 guilty plea and sentencing on three bills of indictment for robbery, burglary and prison breach. The court directed that the defendant stand trial on the three indictments.

On August 13, 1965 appellant filed a motion to dismiss the 1955 bills of indictment on the ground that they had never been approved by a grand jury and that the prosecutions were therefore barred by the statute of limitations. The Commonwealth answered that the appellant had waived indictment by the grand jury. The lower court refused the motion to dismiss.

On December 20, 1965 appellant, represented by counsel, was tried before Judge Shadle without a jury pursuant to agreement. At the trial appellant stipulated the nature and content of the testimony of the prosecution witnesses and offered no defense testimony. Phillips was found guilty and appeals from the judgment of sentence.

I.

Appellant's first argument is that he did not knowingly and intelligently waive grand jury indictment. On July 14, 1955 appellant, without counsel, signed the following form captioned, "Notice to District Attorney of Plea of Guilty":

[ 208 Pa. Super. Page 123]

"I hereby acknowledge and admit that I am guilty of the charge above set forth, and as described in the information in this case, and I do hereby enter my plea of guilty to said charge. I, therefore, request that no bill of indictment charging me with the above offense shall be sent to the Grand Jury, but that you prepare a bill of indictment in the usual form and enter my plea of guilty thereon for the purpose of having the proper Court forthwith impose sentence upon me for the offense therein set forth, under the provisions of the Act of April 15th, 1907, P. L. 62, as amended."

On July 18, 1955, again without counsel and not in open court, appellant signed the following waiver form, stamped on the back of each of the three bills of indictment:

"The Defendant(s) within named, after being advised of my (our) constitutional right to be represented by counsel, voluntarily waive the right to counsel and also waive the finding of a True Bill by the Grand Inquest and enter my (our) plea of 'guilty' to the within charge. The said plea of 'guilty' to have the same force and effect as if the same were entered in open court upon a Bill of Indictment regularly filed by the Grand Inquest."

These forms were prepared and signed pursuant to the Act of April 15, 1907, P. L. 62, § 1, as amended, 19 P.S. § 241.*fn1

Our starting point in resolving this issue is Article I, Section 10 of the Pennsylvania Constitution which provides:

"No person shall, for any indictable offense, be proceeded against criminally by information, except in

[ 208 Pa. Super. Page 124]

    cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger, or by leave of court for oppression or misdemeanor in office."

The fact that in Pennsylvania this is a constitutional guarantee does not mean that it cannot be waived, so long as the waiver is knowingly and intelligently made. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. ed. 1461 (1938); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964). "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, supra at 464. In determining whether a waiver of a constitutional right is intelligently made, the court ...


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