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COMMONWEALTH EX REL. MURPHY v. RUNDLE (09/15/67)

decided: September 15, 1967.

COMMONWEALTH EX REL. MURPHY, APPELLANT,
v.
RUNDLE



Appeal from order of Court of Common Pleas No. 10 of Philadelphia County, Dec. T., 1965, No. 1473, in case of Commonwealth ex rel. Raymond Murphy v. Alfred T. Rundle, Superintendent.

COUNSEL

Melvine Dildine, Assistant Defender, with him Leonard Packel, Assistant Defender, Martin Vinikoor, First Assistant Defender, and Herman I. Pollock, Defender, for appellant.

Joseph M. Smith, Assistant District Attorney, with him Burton D. Fretz and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J. Wright, J., would affirm on the opinion of Judge Weinrott.

Author: Montgomery

[ 210 Pa. Super. Page 525]

This is an appeal by relator from the action of the court below dismissing his petition for a writ of habeas

[ 210 Pa. Super. Page 526]

    corpus, without a hearing. The question presented is whether the record shows a voluntary and intelligent waiver of counsel by relator at trial.

Relator, along with three co-defendants, was tried before a judge without a jury December 22, 1952 on indictments (Nos. 901 to 911, November Sessions, 1952) charging conspiracy, aggravated robbery, attempted robbery and carrying concealed deadly weapons. Relator was not represented by counsel although counsel acting on behalf of two of relator's three co-defendants included relator in a demurrer to the evidence. Relator was found guilty on all charges above stated and sentenced on Bill No. 903 (robbery) to a term of ten to twenty years. Sentence was suspended on the other convictions.

The trial record on the basis of which relator's petition was dismissed disclosed the following. After ascertaining that the co-defendants Samuel Butler and John W. Berry were represented by counsel, the trial judge asked, "Will you stand up, Murphy and Joseph Lee Berry? Have you men counsel to represent you in this trial? Have you any lawyers to represent you in this trial?" Defendants: (Joseph Lee Berry and Raymond Murphy) "No, sir." The Court: "What is your name?" Defendant Murphy: "Murphy." The Court: "Do you want a lawyer, Murphy?" Defendant Murphy: "No, sir." The following colloquy took place regarding the waiver of a jury trial: "The Court: Are you going to have a jury trial or are you going to waive jury trial? Defendant J. L. Berry: I would like to waive a jury trial and try it in front of you. The Court: What about you, Murphy? Defendant Murphy: Yes. The Court: Both of them want to waive a jury trial. What about the others?"

Regarding the charges the court asked, "All right. Do all these men understand that this is a charge -- I presume that it relates to all, I have not broken it

[ 210 Pa. Super. Page 527]

    down yet -- of carrying a concealed deadly weapon, robbery and attempted robbery? Do you all understand what the charge is against you?" Defendant J. L. Berry: "Yes." The Court: ...


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