to the occurrence of the burglary and the condition of the premises upon its discovery. He was followed by a 15-year old boy who testified that the night the burglary was committed he heard a noise resembling banging and hitting and looked out of a window to see relator on the roof of the burgled premises smoking a cigarette and looking around. In addition, there was the testimony of the two arresting policemen to the effect that they found relator in his sister's house hiding in a closet. Accordingly, this Court holds that there is at least some evidence in the record to support the conviction and therefore relator's present contention is without merit.
Relator's final contention is that he was denied due process of law because of the failure of the state court to appoint counsel for him at his preliminary hearing. A defendant in a criminal proceeding is entitled to counsel at a hearing which is or under the circumstances becomes a 'critical' stage of the proceeding. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963). A stage is 'critical' for these purposes when 'substantial rights of a criminal accused may be affected', Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967), or when 'events transpire that are likely to prejudice his ensuing trial'. DeToro v. Pepersack, 332 F.2d 341 (4th Cir.1964), cited with approval in United States ex rel. Maisenhelder v. Rundle, 349 F.2d 592 (3d Cir.1965).
Relator is not required to show actual prejudice at trial because of the absence of counsel at his preliminary hearing; rather he must show a possibility of prejudice resulting from the things which happened at that preliminary hearing. Commonwealth of Pennsylvania ex rel. Whiting v. Cavell, 244 F.Supp. 560 (M.D.Pa.1965), aff'd on other grounds, 358 F.2d 132 (3 Cir.1966), cert. denied, 384 U.S. 1004, 86 S. Ct. 1921, 16 L. Ed. 2d 1018 and 384 U.S. 1009, 86 S. Ct. 1986, 16 L. Ed. 2d 1021.
Ordinarily a preliminary hearing is not a 'critical' stage of a criminal proceeding within the above meaning of what word. Such has been held to be the case in Pennsylvania. Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965). Nevertheless it can become critical if events transpire which are likely to prejudice the trial. The record here indicates that nothing which took place at relator's preliminary hearing was introduced into evidence against him at his trial. Further, the magistrate informed relator of his right to make a statement at the preliminary hearing but suggested that he remain silent and secure counsel following the hearing. This advice was accepted.
Under the above circumstances it cannot be said that events transpired at the preliminary hearing which created a possibility of prejudice at trial. Hamilton, supra, and White, supra, both represent factual settings in which such a possibility of prejudice existed and are therefore distinguishable from the present case.
Alternatively, a preliminary hearing may, because of peculiarities of state procedure, be 'critical' per se. See Hamilton and White, supra. Unlike the procedure in some other states, a preliminary hearing in Pennsylvania merely serves the function of determining whether a defendant should be discharged or bound over to court with or without bail. Pa.R.Crim.P. 119(a), 19 P.S. Appendix. The defendant may be represented by counsel at the hearing and he may cross-examine witnesses and inspect physical evidence offered against him. Moreover, he may testify himself, call witnesses, and offer evidence in his own behalf, except where specified offenses have been charged. Pa.R.Crim.P. 119(b). On the other hand, there appear to be no defenses which, if not raised at the preliminary hearing, are irretrievably lost. It is therefore concluded that there are no procedural peculiarities in Pennsylvania which make a preliminary hearing critical per se. See Pointer v. Texas, supra, 380 U.S. at 402-403, 85 S. Ct. 1065; United States ex rel. Maisenhelder v. Rundle, 229 F.Supp. 506 (E.D.Pa.1964), aff'd 349 F.2d 592 (3d Cir.1965); United States ex rel. Parker v. Myers, 233 F.Supp. 563 (E.D.Pa.1964), aff'd on opinion below, 341 F.2d 303 (3d Cir.1965).
In conclusion, relator's preliminary hearing neither was nor under the circumstances became a critical stage of the criminal proceeding. Accordingly, his contention that he was deprived of his constitutional right to counsel at that hearing is without merit.
And now, this ninth day of September, 1969, it is ordered that relator's petition for writ of habeas corpus be and the same is hereby denied.
There is probable cause for appeal.
© 1992-2004 VersusLaw Inc.