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COMMONWEALTH v. KELLER (01/15/69)

decided: January 15, 1969.

COMMONWEALTH
v.
KELLER, APPELLANT



Appeal from order of Court of Oyer and Terminer of Venango County, Nov. T., 1960, No. 2, in case of Commonwealth v. Douglas Wayne Keller.

COUNSEL

Douglas Wayne Keller, appellant, in propria persona.

Harry W. Gent, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief justice Bell. Mr. Justice Jones and Mr. Justice Roberts concur in the result. Mr. Justice Musmanno did not participate in the decision of this case. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Bell

[ 433 Pa. Page 21]

This is an appeal from the Order of the Court of Oyer and Terminer dismissing Keller's petition for his release on bail. The unusual facts in this case require a detailed statement.

Petitioner and two co-defendants, all of whom were represented by counsel, were found guilty of second-degree murder in 1961. A sentence of not less than 10 nor more than 20 years was imposed.

On July 29, 1964, Keller filed a petition for a writ of habeas corpus in the Court of Common Pleas, seeking his release from prison on the ground that he had been denied the benefit of counsel and had not been informed of his Constitutional rights and Escobedo warnings when he was being interrogated by police officers

[ 433 Pa. Page 22]

    prior to his trial. This petition was dismissed by an Order (with accompanying Opinion) of the lower Court on February 23, 1965, and a petition for rehearing was subsequently dismissed by the same Court. We affirmed the Order of the lower Court in Commonwealth ex rel. Keller v. Maroney, 419 Pa. 318, 214 A.2d 249 (1965).

On June 1, 1965, Keller filed a post-conviction petition under the Post Conviction Hearing Act of January 25, 1966, P. L. 1580, 19 P.S. ยง 1180-1, requesting his release on the ground that his Constitutional rights were violated by (1) the destruction of the victim's home prior to trial, (2) petitioner's enforced participation in the re-enactment of the homicide, (3) petitioner's arrest without a warrant and without probable cause. This petition was dismissed by the lower Court and no appeal was taken.

[ 433 Pa. Page 23]

On January 20, 1967, Keller filed another petition under the Post Conviction Hearing Act requesting his release on the ground that, after he had been convicted of murder in the second degree, he had been erroneously advised by his former counsel that he might be convicted of murder in the first degree if he was tried again. At the Court hearing on this petition, counsel for Keller testified that he had informed petitioner that he could be convicted of first-degree murder if retried. On July 31, 1967, the lower Court issued an Order granting petitioner the right to file post-trial motions in arrest of judgment and for a new trial.*fn1 On October 2, ...


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