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decided: October 9, 1969.


Appeal from order of Superior Court, Oct. T., 1967, No. 226, affirming order of Court of Common Pleas of Lackawanna County, Nov. T., 1966, No. 434, in case of Commonwealth ex rel. William J. McGurrin v. John Shovlin, Superintendent.


Thomas P. Kennedy, administrator, for appellant.

Harry O'Neill, Jr., Assistant District Attorney, with him Robert W. Munley, Assistant District Attorney, and Joseph J. Cimino, District Attorney, for appellee.

Lawrence T. Hoyle, Jr., with him Julian E. Goldberg, for American Civil Liberties Union, amicus curiae.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Justice Eagen. Mr. Justice Jones joins in this opinion. Concurring Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this opinion. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Per Curiam

[ 435 Pa. Page 476]

Since 1963, William Joseph McGurrin has been confined in the Farview State Hospital at Waymart, Pennsylvania, under order of the Court of Quarter Sessions of Lackawanna County. The order of commitment was entered by the court following receipt of a report from a Sanity Commission*fn1 stating that McGurrin was mentally

[ 435 Pa. Page 477]

    ill and of criminal tendencies. The Commission, consisting of two psychiatrists and one attorney, arrived at its conclusions following a hearing conducted in accordance with Art. III, Section 327 of the Act of 1951, supra, 50 P.S. § 1202. At this hearing McGurrin was present but did not have the assistance of legal counsel.

In the present proceedings, McGurrin seeks his release from confinement by way of habeas corpus proceedings instituted in the Court of Common Pleas of Lackawanna County.*fn2 He contends that under the Sixth and Fourteenth Amendments to the Constitution of the United States, the presence of legal counsel on his behalf at the hearing before the Sanity Commission was an absolute requirement and since said hearing was conducted in the absence thereof, the proceedings were constitutionally invalid.

We will not and do not reach the constitutional question. It is the conclusion of the Court that in every case where a person is convicted of or charged with crime, and is thought to be mentally ill; and where a commission is appointed by the appropriate court to examine that person; and where a hearing is conducted before the court-appointed commission; then, in such cases, it is desirable and wise that such person be represented by legal counsel. Under our supervisory powers, we declare this to be the policy of the courts

[ 435 Pa. Page 478]

    in this Commonwealth and the course to be followed in such cases.

The orders of the Superior Court and the Court of Common Pleas of Lackawanna County are therefore vacated and the record is remanded to the court of original jurisdiction. If within 45 days proceedings are not instituted and conducted consonant with this opinion, the writ is directed to issue.


Orders of Superior Court and lower court vacated and record remanded.

Concurring Opinion by Mr. Justice Eagen:

While I wholeheartedly join in the declaration of policy enunciated in the Majority opinion, I wish to express some views on the constitutional question involved.

I cannot agree with the contention that the presence of counsel at a sanity commission hearing under the Pennsylvania Mental Health Act of 1951 is a constitutional right. A plethora of Pennsylvania case authority bears witness to the nature of a sanity commission hearing; those cases unhesitatingly characterize such hearings as civil in nature, not criminal or even adversary. As was stated by Mr. Justice Chidsey: "The rights of the defendant as an offender on trial for an offense are not here involved. The inquiry is not an adversary proceeding to determine the guilt or innocence of the defendant but a collateral proceeding entirely apart therefrom to inform the conscience of the court as to the appellant's mental condition -- not merely whether defendant had a mental illness or disorder in the opinion of psychiatrists or medical witnesses but, assuming that some mental illness existed, whether it so lessened his capacity to use his customary selfcontrol, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or

[ 435 Pa. Page 479]

    advisable for him to be under care." Commonwealth v. ...

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