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COMMONWEALTH v. JOHNSON (01/03/68)

decided: January 3, 1968.

COMMONWEALTH
v.
JOHNSON, APPELLANT



Appeal from order of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1945, No. 316, in case of Commonwealth of Pennsylvania v. James Johnson.

COUNSEL

John W. Packel and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, 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

[ 428 Pa. Page 211]

On October 8, 1945, appellant, while represented by counsel, pled guilty to murder generally before a three judge court. On that same day all evidence relating to degree of guilt was presented; however, before rendering its decision or passing sentence, the court decided to take the case under advisement. Appellant next came before the court on October 19, 1945. On that day, according to a copy of the official transcript, an opinion was read from the bench by the president judge. This opinion stated that the defendant was guilty of first degree murder, but that, because the facts so closely approximated second degree murder, the penalty would be fixed at life imprisonment, the lightest sentence permissible under Pennsylvania's first degree murder statute. Act of June 24, 1939, P. L. 872, § 701, as amended, 18 P.S. § 4701. At the conclusion of this reading, the defendant was asked if he had anything to say before sentence was officially pronounced. When he replied that he did not, the court then read the traditional language used to sentence a man to life imprisonment. The record indicates that no other events took place at the October 19th proceeding. Appellant's sole contention in this Post Conviction Hearing Act proceeding is that he had no counsel present with him on October 19, 1945, and that this constituted denial of due process.

Before reaching the merits of appellant's case, we must first decide whether appellant effectively waived

[ 428 Pa. Page 212]

    counsel at his post-conviction evidentiary hearing.*fn1 When Johnson originally completed the required Post Conviction Hearing Act form, he indicated that he was without funds and desired the court to appoint counsel. It then appears that, sua sponte, he amended the form to include a space for the specific attorneys desired. In this space appellant wrote the names of three lawyers. The court, however, refused to appoint any of the named attorneys, but instead appointed a voluntary defender to represent Johnson. Appellant immediately petitioned the court to have this defender withdrawn, on the ground that the entire voluntary defender system was ineffective and inadequate, and on the further ground that he was entitled, in a capital case, to have two attorneys of his own choice. The court accepted the defender's voluntary withdrawal, but still refused to appoint the lawyers named in appellant's post-conviction form. As a result, Johnson appeared in court without an attorney on the day of his evidentiary hearing.

Johnson's claim that he is entitled to more than one lawyer is simply without merit. The Act of March 22, 1907, P. L. 31, § 1, as amended, 19 P.S. § 784 provides only that a person " charged with murder" and who cannot afford counsel is entitled to court appointed counsel "not exceeding two" to defend him. (Emphasis supplied.) Thus, not only is dual counsel not required by the statute, but even if it were, the language

[ 428 Pa. Page 213]

    clearly refers only to those individuals charged with murder. We fail to see how a man who has been in prison for twenty-two years, and who now brings a post-conviction proceeding can still be said to be "charged" with murder in the same manner as one who has not yet stood trial. Finally § 12 of the Post Conviction Hearing Act, unlike the statute cited, supra, contains no mention of more than one lawyer, nor have any of the cases decided by this Court construing § 12 required more than a single lawyer, including those involving petitioners who had originally been convicted of murder.

So also has it been firmly held that an indigent, while entitled to free counsel, is not entitled to free counsel of his choice. United States v. Burkeen, 355 F. 2d 241, 245 (6th Cir.), cert. denied sub nom., Matlock v. United States, 384 U.S. 957, 86 S. Ct. 1582 (1966) ("[defendant's] right to counsel does not carry with it the right to select a particular lawyer as his court-appointed attorney. [citing cases]"); United States v. Davis, 365 F. 2d 251 (6th Cir. 1966); cf. Commonwealth v. Hart, 403 Pa. 652, 662, 170 A.2d 850, 856, cert. denied, 368 U.S. 881, 82 S. Ct. 130 (1961). It is true that in Davis mention was made of the right to reject court appointed counsel "for good cause shown." But this ...


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