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COMMONWEALTH v. GATES (04/16/68)

decided: April 16, 1968.

COMMONWEALTH
v.
GATES, APPELLANT



Appeal from order of Court of Oyer and Terminer of Indiana County, June T., 1957, No. 3, in case of Commonwealth of Pennsylvania v. Harry B. Gates.

COUNSEL

G. S. Parnell, and Parnell & Parnell, for appellant.

W. Thomas Malcolm, 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

[ 429 Pa. Page 454]

Following a trial before judge and jury at which appellant pleaded not guilty and relied upon the defense of alibi, the jury returned a verdict of guilty of murder in the first degree, fixing the penalty at life imprisonment. Appellant Gates' subsequent appeal to this Court resulted in an affirmance of his conviction. Commonwealth v. Gates, 392 Pa. 557, 141 A.2d 219 (1958). He now appears before us a second time, allegedly aggrieved at the dismissal of his Post Conviction Hearing Act petition without hearing by the court below. Although Gates' list of alleged trial and pretrial errors is impressive for its length, we agree with the court below that none of his allegations require the grant of an evidentiary hearing.

Gates presses nine reasons for granting relief. These are: (1) that he was detained 50 days before being given a preliminary hearing; (2) that no warrant was secured for his arrest until he had been in custody for 24 hours; (3) that he was not present at the coroner's inquest; (4) that he was not permitted to consult a lawyer or his family when arrested; (5) that he was given no constitutional warnings before interrogation began; (6) that perjured testimony was employed during his trial; (7) that he was unduly restricted in the right to cross-examine certain Commonwealth witnesses on their credibility; (8) that the verdict was against the weight of the evidence; and (9) that he was not asked if he had anything to say before sentence

[ 429 Pa. Page 455]

    was pronounced. We shall treat these contentions seriatim.

Appellant's attack upon the delay in holding a preliminary hearing is coupled with no alleged facts to demonstrate that this delay was in any manner prejudicial. Nor is there any challenge here made to the manner in which this hearing was conducted when finally held. See White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963). Reduced to its essence, this allegation is really a claim that appellant was denied the right to a speedy trial. However, it is well established that such an alleged defect will not form the basis for collateral relief, especially if not objected to at trial. Commonwealth ex rel. Wilkes v. Maroney, 423 Pa. 113, 222 A.2d 856 (1966); Commonwealth ex rel. Romano v. Banmiller, 397 Pa. 606, 156 A.2d 825, affirming an opinion of the court below at 19 Pa. D. & C. 2d 198 (C.P. 1959). The proper procedure for objecting to the speed of trial is a motion to quash the indictment. Commonwealth ex rel. Sukaly v. Maroney, 201 Pa. Superior Ct. 117, 191 A.2d 893 (1963), affirming an opinion of the court below at 30 Pa. D. & C. 2d 86 (1962).

Similarly, with respect to the delay in securing a warrant, Gates has again failed to allege a single fact tending to show that he was thereby prejudiced, nor has counsel even attempted to explain why no objection was ever voiced at trial to this procedure. Accordingly, we hold that Gates has waived his right to challenge this alleged error collaterally. Act of January 25, 1966, P. L. (1965) 1580, § 4, 19 P.S. § 1180-4 (Supp. 1967).*fn1

[ 429 Pa. Page 456]

Appellant next contends that he was denied the right to be present at the coroner's inquest. Even if true, however, this would not entitle him to relief, it having been recently held by this Court that such procedure is not error. Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965); ...


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