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COMMONWEALTH v. GWYN (10/04/72)

decided: October 4, 1972.

COMMONWEALTH
v.
GWYN, APPELLANT



Appeal from order of Court of Common Pleas of Dauphin County, Sept. T., 1967, No. 26, in case of Commonwealth of Pennsylvania v. Hilery Randolph Gwyn.

COUNSEL

William H. Saye, Assistant Public Defender, for appellant.

Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Manderino.

Author: Roberts

[ 449 Pa. Page 133]

Appellant Hilery Randolph Gwyn was charged with murder and brought to trial before a jury on April 1, 1968. The jury returned a verdict of guilty in the first degree and imposed a sentence of life imprisonment. Post-trial motions were denied and appellant appealed to this Court. We affirmed his judgment of sentence. Commonwealth v. Gwyn, 441 Pa. 546, 272 A.2d 891 (1971).

On May 27, 1971, appellant, assisted by counsel, filed a petition pursuant to the Post Conviction Hearing Act.*fn1 The trial court denied the petition without a hearing. This appeal challenges the propriety of the trial court's dismissal.

Section 9*fn2 of the PCHA requires that a hearing should be held only "[i]f a petition alleges facts that if proven would entitle the petitioner to relief. . . ." Section 9 further provides that "the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner . . . ." The trial court properly relied upon this provision in denying appellant's petition, and we thus affirm.

The first issue presented by appellant is his allegation that he was without counsel at a preliminary hearing held October 3, 1967. Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970), which held that Alabama's preliminary hearing was a critical stage entitling a defendant to the assistance of counsel, is not retroactive. Adams v. Illinois, 405 U.S. 278, 92 S. Ct. 916 (1972); Commonwealth v. James, 440 Pa. 205, 269 A.2d 898 (1970). Nor has appellant demonstrated

[ 449 Pa. Page 134]

    any prejudice by the alleged "absence of counsel" at his preliminary hearing. Prior to Coleman, supra, this Court, following the mandate of White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963), required a defendant to demonstrate that he was prejudiced by the absence of counsel at the preliminary hearing. See Commonwealth ex rel. Firmstone v. Myers, 431 Pa. 628, 246 A.2d 371 (1968); Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968); Commonwealth v. Gates, 429 Pa. 453, 240 A.2d 815 (1968); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth ex rel. LaRue v. Rundle, 417 Pa. 383, 207 A.2d 829 (1965); Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965).

Finally, the trial court noted that "the transcript of said [preliminary] hearing shows the defendant was represented by two attorneys who had been appointed on September 29, 1967 by this Court to represent the petitioner." Thus both the record and our case law are contrary to appellant's contentions. Clearly this ...


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