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decided: September 27, 1966.


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.


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 notice to him of the presentation of his case to the grand jury after he had gone to trial. Nor does there seem to be any reason,

[ 423 Pa. Page 128]

    absent extraordinary circumstances*fn4 not suggested by the record or by appellant's petition, why such an objection should not be asserted before the accused goes to trial in a case where counsel were appointed for defendant four days after his arrest and twenty-five days before the return of a true bill by the grand jury.*fn5 The orderly administration of criminal justice requires that the resources expended in trials not be wasted by the post trial assertion of claims which normally come to the attention of the defense before trial commences. By statute in Pennsylvania formal defects apparent on the face of an indictment must be asserted before the jury is sworn*fn6 and while this statute does not control appellant's claim, we think the policy considerations inherent in it are applicable. Indictments containing defects not formal or not apparent on the face of the document have been traditionally attacked by motion made before trial, e.g., Commonwealth v. Bradney, 126 Pa. 199, 204, 17 Atl. 600, 601 (1889); Commonwealth v. Vancel, 99 Pa. Superior Ct. 40 (1930); Commonwealth v. Ross, 58 Pa. Superior Ct. 412, 417 (1914); Commonwealth v. Carlucci, 48 Pa. Superior Ct. 72 (1911); Commonwealth v. Bolger, 42 Pa. Superior Ct. 115, 119-20 (1910), aff'd per curiam on the opinion of the court below, 229 Pa. 597, 79 Atl. 113 (1911), and we see no reason, absent extraordinary circumstances, why trial counsel should not be held to such a practice.

The papers filed by appellant with this Court raise for the first time several claims not raised in the petition in the court below. We need not consider for the first time on appeal of the denial of a habeas corpus

[ 423 Pa. Page 129]

    hearing an issue not presented to the court below. Commonwealth ex rel. Pacewicz v. Turley, 399 Pa. 458, 466, 160 A.2d 685, 689 (1960); Commonwealth ex rel. Wilkes v. Maroney, 423 Pa. 113, 124, 222 A.2d 856, 862 (1966) (alternative holding). Accordingly, we hold the petition below was properly dismissed without a hearing.

Order affirmed.


Order affirmed.

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