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

decided: September 27, 1966.

COMMONWEALTH EX REL. LOVEDAY, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas of Dauphin County, June T., 1965, No. 1214, in case of Commonwealth ex rel. Billy Joe Loveday v. David N. Myers, Superintendent.

COUNSEL

Billy Joe Loveday, appellant, in propria persona.

Herbert S. Cohen, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for appellee.

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

Author: Jones

[ 422 Pa. Page 484]

This is an appeal from an order of the Court of Common Pleas of Dauphin County refusing to issue a writ of habeas corpus.

A brief recital of the factual background surrounding the homicide as the result of which Billy Joe Loveday was found guilty of murder in the first degree and sentenced to life imprisonment is necessary. In the early morning of July 16, 1953, Loveday, with two confederates, Mahaffey and Smith, planned to rob a motel near Harrisburg; the trio went to the motel; Mahaffey remained outside at the wheel of an automobile; under the pretext of renting a motel unit, Loveday and Smith entered the motel and lured the aged father (David Fawber), of the motel owner to the motel room they professedly were to occupy; after they had entered the room, Smith pulled out a gun stating this was a "stick-up"; Fawber grappled with Loveday who was also armed; Smith, with his gun, hit Fawber three times on the head, the gun was discharged and Fawber was killed. The trio, by automobile, then fled to Cleveland where they were apprehended and returned to Harrisburg several days later. Loveday, Smith and Mahaffey were indicted on the charge of murder. Smith was found guilty by a jury of murder in the first degree and the penalty was fixed at life imprisonment. Thereafter, Loveday, then represented by counsel, changed his plea from not guilty to guilty*fn1 and a three judge court, after a hearing on December 24, 1953, found Loveday guilty of first degree murder and fixed the penalty as life imprisonment.

On July 15, 1965, Loveday petitioned the Court of Common Pleas of Dauphin County for the issuance of

[ 422 Pa. Page 485]

    a writ of habeas corpus which was denied without hearing.

Loveday claims he was not accorded due process of law and that his constitutional rights were violated. Specifically, Loveday alleges: (a) that, for a two day period, he was held incommunicado and mistreated;*fn2 (b) that he was not given a preliminary hearing until two days after his arrest; (c) that his "confession" was "dictated" by a state police officer in the absence of counsel and at a time when he had not been advised of his right to counsel or of his right to remain silent; (d) that the plea of guilty was not intelligently nor understandingly entered; (e) that he was arrested "without probable cause".*fn3

The record indicates that, upon Loveday's return to Harrisburg, he refused to answer any questions because he said he anticipated the arrival of a Tennessee lawyer who never did appear; Loveday never requested other counsel; he was confined in a cell; two days later Loveday volunteered to make a statement. Moreover, it must be noted that neither at the trial nor in the 12 years succeeding trial did Loveday make any claim of mistreatment while in police custody.

The record further reveals that no written statement of Loveday was introduced at the trial; that a state police sergeant testified to oral statements made by Loveday; that no objection was made to the admission of such oral statements ; that Loveday's own testimony ...


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