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COMMONWEALTH EX REL. BANKS v. MYERS (09/27/66)

decided: September 27, 1966.

COMMONWEALTH EX REL. BANKS, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas of Lancaster County, Habeas Corpus Docket No. 5, at 149, in case of Commonwealth ex rel. Henry H. Banks v. David N. Myers, Superintendent.

COUNSEL

Henry H. Banks, appellant, in propria persona.

Wilson Bucher, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 423 Pa. Page 125]

This is an appeal from the denial, without hearing, of a habeas corpus petition. By a complaint dated February 9, 1948, appellant was charged with having committed

[ 423 Pa. Page 126]

    murder on February 7, 1948.*fn1 Counsel were appointed for appellant on February 11, 1948. A preliminary hearing was held on February 18, 1948. On March 8, 1948, an indictment was returned against appellant, he was arraigned, pleaded not guilty, and proceeded to trial by jury. Appellant was represented by counsel both at arraignment and at trial. On March 9, 1948, the jury found appellant guilty of murder in the first degree and he was sentenced to a term of life imprisonment. Neither post-trial motions nor an appeal were filed on appellant's behalf.

In the habeas petition appellant presented to the court below there are several claims which require only cursory treatment. Appellant's contention that he was arrested without a warrant and without probable cause does not of itself afford him any ground for post-conviction relief. E.g., Commonwealth ex rel. Light v. Maroney, 413 Pa. 254, 257, 196 A.2d 659, 661 (1964). Appellant's claim that he requested and was denied counsel during his initial incarceration in 1948 does not without more entitle him to any remedy at this time. Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 13, 198 A.2d 565, 566 (1964); Commonwealth ex rel. Wilkes v. Maroney, 423 Pa. 113, 124, 222 A.2d 856, 862 (1966); Johnson v. New Jersey, 384 U.S. 719, 723, 86 S. Ct. 1772, 1775 (1966). The possibility that appellant was not represented by counsel during a preliminary hearing, at which he admittedly pleaded not guilty and about which he makes no other allegation, fails to suggest that the hearing was such a "critical stage" that representation by counsel was constitutionally

[ 423 Pa. Page 127]

    necessary. See, e.g., Commonwealth ex rel. Swilley v. Maroney, 420 Pa. 419, 420, 218 A.2d 242, 243 (1966). Finally, in light of the above discussion, appellant's argument that his indictment was invalidated by the alleged illegality of his arrest, preliminary hearing and the lack of counsel before trial is clearly groundless.

Also presented to the court below in appellant's petition is the assertion that his conviction must be invalidated because he "was available, but was not notified or informed when the Indictment was presented to the Grand Jury for deliberation."*fn2 While it is true that the common law of Pennsylvania appears to entitle an accused to notice that his case is being presented to a grand jury,*fn3 we know of no reported case in this Commonwealth in which an accused was permitted to assert a failure to give ...


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