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COMMONWEALTH EX REL. MCKENNA v. CAVELL (11/29/66)

decided: November 29, 1966.

COMMONWEALTH EX REL. MCKENNA, APPELLANT,
v.
CAVELL



Appeal from order of Superior Court, Oct. T., 1965, No. 801, affirming order of Court of Common Pleas of Bradford County, Oct. T., 1963, No. 245, in case of Commonwealth ex rel. Gerard P. McKenna v. A. C. Cavell, Superintendent.

COUNSEL

Gerard P. McKenna, appellant, in propria persona.

Maurice L. Epstein, District Attorney, for appellee.

Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 423 Pa. Page 389]

This appeal lies from an order of the Superior Court affirming an order of the Court of Common Pleas of Bradford County which, after a hearing at which Gerard McKenna was represented by court-appointed counsel, denied the issuance of a writ of habeas corpus. We granted an allocatur.

During the night of July 2, 1955, an entry was made into the office of an outdoor theatre located in Athens, Bradford County; a safe in that office was moved to the doorway of the office on a "dolly" to which was attached a chain; the safe unopened, the "dolly" and the chain were found at the office doorway. On July 4, 1955, a warrant was issued for the arrest of Gerard McKenna, [McKenna], on a charge of reckless driving in Waverly, New York, on July 2, 1955. The chief of police of Waverly, accompanied by a Pennsylvania state police officer, went to Buffalo, New York, where McKenna was apprehended and returned to Waverly. While in custody in Waverly, McKenna made a statement admitting entry into the theatre office.*fn1 On July 6, 1955, a warrant was obtained for McKenna's arrest upon the charge of burglary, McKenna waived extradition before a judge in

[ 423 Pa. Page 390]

Waverly and he was then returned to Bradford County and lodged in jail.*fn2

On July 8, 1955, McKenna was given a hearing before a justice of the peace and at that hearing McKenna, unrepresented by counsel, was charged with burglary. The transcript of that hearing reveals that burglary was the sole charge then made against McKenna.*fn3

On July 11, 1955, an indictment was prepared by the district attorney's office in which McKenna and Hunsinger were charged with the crime of burglary in entering the office of the outdoor theatre and also with the crimes of larceny of a safe containing $609, a "dolly" valued at $50 and a chain valued at $10.*fn4 On that date, while represented by counsel retained by his parents, McKenna waived presentation of the indictment to the grand jury and entered a plea of guilty to the indictment containing both the burglary and larceny counts. Prior to entering his plea for "a very short time" McKenna met with his counsel, a meeting which took place in the presence of certain prosecution officials, including the police, and McKenna's

[ 423 Pa. Page 391]

    mother. At the habeas corpus hearing, there was testimony that McKenna's counsel then informed him that, if he had taken part in the crime and would enter a plea of not guilty, he would, by so doing, open himself to a ...


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