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COMMONWEALTH v. HAINES (01/09/68)

decided: January 9, 1968.

COMMONWEALTH
v.
HAINES, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Cumberland County, Sept. T., 1955, No. 12, in case of Commonwealth of Pennsylvania v. Percy S. Haines.

COUNSEL

Percy S. Haines, appellant, in propria persona.

Harold E. Sheely, Assistant District Attorney, and Richard C. Snelbaker, District Attorney, for Commonwealth, appellee.

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

Author: Musmanno

[ 428 Pa. Page 240]

Percy S. Haines on August 2, 1955, during the course of a nonsupport hearing instituted by his wife, shot and killed attorney John D. Faller, Jr., and wounded three other persons, the presiding judge, Honorable Mark E. Garber, Sr., attorney George S. Black, and Lulu Haines, the defendant's wife.

For the killing of John Faller the defendant, after a jury trial, was found "Guilty of Murder in the first degree with the penalty of life imprisonment," and that sentence was pronounced on September 29, 1955. No appeal was taken from this conviction and sentence. Later the defendant was convicted of assault with intent to kill, for the wounding of the other three individuals mentioned. He was sentenced to a term of 3 1/2 to 7 years on each of these convictions, the sentences to run consecutively following expiration of the murder sentence. Nor did he appeal from these convictions and sentences.

In 1958 and 1959 he filed petitions for writ of habeas corpus, which petitions were denied by the lower court, and the denial affirmed by this Court. He applied to the Supreme Court of the United States for a writ of certiorari in the 1959 petition which was refused. In 1964 he petitioned again for a writ of habeas corpus and this petition was dismissed by the lower court. In 1965 the present petition for habeas corpus was filed. After a hearing the lower court found that Haines' constitutional right to the assistance of counsel on appeal had been infringed and authorized a direct appeal to this Court. On May 31, 1967 this Court allowed the appeal nunc pro tunc.

In this appeal Haines alleges various errors which he claims violated his constitutional rights and entitle him to a new trial. He asserts that since the bill of indictment lists the name of his wife as a witness before

[ 428 Pa. Page 241]

    the grand jury the court did not have jurisdiction to proceed to trial on that indictment. At the hearing on the petition no one could state that the wife did actually testify before the grand jury. On the contrary the district attorney who had tried the case (and is now a judge) introduced a document which had been prepared under his direction as the district attorney in charge of the grand jury proceeding. This document listed the cases heard and the witnesses who testified at the grand jury session in question. The document did not contain the name of the petitioner's wife. The district attorney testified that the list was a correct one and that he had examined it before it was presented to the court at the end of the grand jury session. No reason has been presented to question the integrity of this document. The petitioner's contention, therefore, that his wife testified at the grand jury proceeding is not substantiated by the evidence.

The petitioner asserts further that his constitutional rights were violated by the introduction at the trial of certain photographs taken of him during reenactment of the shooting and an incriminatory statement obtained by the police during interrogation. He asserts that there was no record he had been advised of his right to have counsel during the interrogation or during the alleged reenactment scenes. The interrogating officer testified that he did advise Haines that what he said could be used against him but that he did not remember telling him he had a right to be represented by counsel. The petitioner relies on Escobedo v. Illinois, 378 U.S. 478 and Miranda v. Arizona, 384 U.S. 436, but this court recently held in Commonwealth ex rel. Mount v. Rundle, 425 Pa. 312, that those decisions are not ...


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