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COMMONWEALTH v. TURNER (03/20/69)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 20, 1969.

COMMONWEALTH
v.
TURNER, APPELLANT

Appeal from order of Criminal Courts of Delaware County, June T., 1966, Nos. 375 to 380, inclusive, in case of Commonwealth of Pennsylvania v. Emile A. Turner.

COUNSEL

Mervyn R. Turk, Assistant Public Defender, for appellant.

Vram Nedurian, Jr. and Ralph B. D'Iorio, Assistant District Attorneys, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ.

Author: Per Curiam

[ 214 Pa. Super. Page 49]

On July 1, 1966, appellant, a juvenile, was convicted in the Court of Quarter Sessions of Delaware County of assault with intent to kill, assault with intent to ravish, burglary and larceny. Appellant's post-conviction petition attacks these convictions on the ground that the Juvenile Court failed to comply with the requirements of Kent v. United States, 383 U.S. 541 (1966), in certifying the proceedings to the Court of Quarter Sessions.

We do not reach the merits of appellant's claim because we find that the failure to raise the claim in a timely manner was a deliberate by-pass of available procedures and presumptively a procedural waiver under ยง 4 of the Post Conviction Hearing Act. Although appellant was represented by counsel at all stages of

[ 214 Pa. Super. Page 50]

    the proceedings, this contention was not raised at the certification hearing, on appeal from the certification, in a motion to quash the indictments, at trial, in post-trial motions or on direct appeal from appellant's conviction. Freeman Appeal, 212 Pa. Superior Ct. 422, 242 A.2d 903 (1968), impliedly held that a certification order is appealable. The failure of appellant to attack certification, either directly or in collateral proceedings, before his conviction became final is presumptively a procedural waiver and appellant has not attempted to overcome this presumption. See Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968).

The order of the court below is affirmed.

Disposition

Order affirmed.

19690320

© 1998 VersusLaw Inc.



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