Commonwealth ex rel. Lockhart v. MyersCommonwealth ex rel. Lockhart v. Myers
- Reporters:
- , ,
- Before:
- Wright, Rhodes, Gunther, Woodside, Ervin, Watkins, Montgomery
Sylvester Lockhart, Jr. has appealed from an order of Court of Common Pleas No. 5 of Philadelphia County, entered April 28, 1960, dismissing his petition for a writ of habeas corpus. We have carefully reviewed the voluminous original trial record, which discloses the following factual situation:
On February 5, 1954, appellant, in company with Nathanial R. Spencer, Emmit Bethea, and Robert W. Batchelor, committed an armed robbery on the premises of the United Provision Company, 221 Noble Street, in the City of Philadelphia. It is a fair inference from the testimony that appellant was the ringleader. It was he who carried the gun, threatened the employes and customers, and personally took the payroll money and the wallets of the individual victims. Appellant was apprehended on February 18, 1954. On February 19, 1954, he was given a preliminary hearing, which was continued until February 24, 1954. At
The instant petition covers some 40 pages, and the brief on this appeal is of equal length. Both are prolix, verbose, and redundant. While strict rules of pleadings do not apply to petitions for habeas corpus, some legal definiteness and certainty are required: Commonwealth ex rel. Kennedy v. Mingle, 388 Pa. 54, 130 A. 2d 161. Appellant‘s statement of the nine questions allegedly involved covers four typewritten pages.
Appellant‘s first four contentions may be treated together. He complains that he was not accorded a proper preliminary hearing, that it was not complete, that all five indictments were not supported by informations, and that he was not faced at the hearing by all of his accusers. A variance between the information and the indictment is not a valid ground upon which to base a reversal of judgment after the defendant has gone to trial: Commonwealth v. Bradley, 16 Pa. Superior Ct. 561; Commonwealth v. Zayrook, 30 Pa. Superior Ct. 111; Commonwealth ex rel. Tyson v. Day, 181 Pa. Superior Ct. 259, 124 A. 2d 426. After a
Appellant‘s fifth and sixth contentions, in sum, are that he was subjected to “double jeopardy“. It should be noted that this plea is available in capital cases only: Commonwealth v. Beiderman, 109 Pa. Superior Ct. 70, 165 A. 765; Commonwealth ex rel. Wallace v. Burke, 169 Pa. Superior Ct. 633, 84 A. 2d 254. Moreover, it does not form the basis for a writ of habeas corpus: Commonwealth ex rel. Ross v. Egan, 281 Pa. 251, 126 A. 488; Commonwealth ex rel. Wagner v. Day, 178 Pa. Superior Ct. 506, 115 A. 2d 404. Appellant‘s complaint is based on his allegation that only one crime was committed. He asserts that the entire transaction at the United Provision Company constituted but one offense, for which he was indicted five times.
Appellant‘s seventh contention is that the trial judge erred in his charge to the jury. Not one of defense counsel took any exception to the charge, or suggested any addition or correction, although given the opportunity to do so. Appellant has quoted certain
Appellant‘s eighth and ninth contentions are that certain proceedings were conducted in his absence, wherefore he was denied his constitutional rights. He first complains that certain bills of indictment were severed prior to trial, at a time when he was not present. The consolidation or separation of indictments is a matter for the trial judge, whose determination will be reversed on appeal only for obvious abuse of discretion or prejudice to the defendant: Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 151 A. 2d 480. See also Commonwealth v. Kloiber, 174 Pa. Superior Ct. 483, 101 A. 2d 444; Commonwealth v. Patrick, 174 Pa. Superior Ct. 593, 101 A. 2d 139; Commonwealth v. Ackerman, 176 Pa. Superior Ct. 80, 106 A. 2d 886. In the instant case, as already indicated, the indictments were severed prior to trial. Conceding that the defendant has a right to be present during all stages of the trial itself, this right does not extend to purely procedural matters preparatory to trial. Nor has appellant cited any authority for his
Appellant also complains that a private conference was held in chambers subsequent to the verdicts. Briefly, the trial judge invited Captain Ferguson of the Philadelphia Police into consultation prior to pronouncing sentence, stating “all of you can be present“. Appellant complains that testimony was then given by unsworn witnesses in his absence. It is of course true that a defendant charged with felony has a right to be present at every stage of the proceedings from arraignment to the rendition of the verdict: Commonwealth v. Johnson, 348 Pa. 349, 35 A. 2d 312; Commonwealth ex rel. Tanner v. Claudy, 378 Pa. 429, 106 A. 2d 401; Commonwealth ex rel. Butler v. Claudy, 171 Pa. Superior Ct. 573, 91 A. 2d 318; Commonwealth ex rel. Paylor v. Claudy, 173 Pa. Superior Ct. 336, 98 A. 2d 468. However, this right does not extend to a pre-sentence investigation. In determining appropriate sentences, trial judges have a wide latitude in ascertaining pertinent facts, whether or not these facts are produced by witnesses who are seen and heard: Commonwealth v. Petrillo, 340 Pa. 33, 16 A. 2d 50. The sentencing of a defendant is a matter which is committed to the sound discretion of the trial judge: Commonwealth v. Coleman, 179 Pa. Superior Ct. 1, 115 A. 2d 811.
Appellant further avers that he was not present when sentence was pronounced, and was not given an opportunity to speak before being sentenced. In this connection, it is proper for us to consider the trial record: Commonwealth ex rel. Chambers v. Claudy, 171 Pa. Superior Ct. 115, 90 A. 2d 383; Commonwealth ex rel. Wagner v. Tees, 174 Pa. Superior Ct. 475, 101 A. 2d 770; Commonwealth ex rel. Velos v. Tees, 175 Pa. Superior Ct. 297, 104 A. 2d 339; Commonwealth ex rel. DeSimone v. Maroney, 179 Pa. Superior Ct. 300, 116 A. 2d 747. According to the instant record, the trial judge, after receiving the verdicts and preparatory to passing sentence, briefly interrogated appellant as to his past offenses. The conference with Captain Ferguson then took place, after which the judge pronounced the sentences. The trial record may not be impeached in a collateral proceeding: Commonwealth ex rel. Kaylor v. Ashe, 167 Pa. Superior Ct. 263, 74 A. 2d 769; Commonwealth ex rel. Chambers v. Claudy, 171 Pa. Superior Ct. 115, 90 A. 2d 383; Commonwealth v. Asher, 181 Pa. Superior Ct. 80, 124 A. 2d 701; Commonwealth ex rel. Karpinski v. Burke, 182 Pa. Superior Ct. 135, 125 A. 2d 460; Commonwealth ex rel. Taylor v. Keenan, 184 Pa. Superior Ct. 507, 135 A. 2d 777. The judgment of a court carries with it a presumption of regularity: Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A. 2d 1; Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 71 A. 2d 799; Commonwealth ex rel. Richter v. Burke, 175 Pa. Superior Ct. 255, 103 A. 2d 293; Commonwealth ex rel. Jackson v. Day, 179 Pa. Superior Ct. 566, 118 A. 2d 289; Commonwealth ex rel. Schenck v. Banmiller, 190 Pa. Superior Ct. 467, 154 A. 2d 320. This presumption gains force with the passage of time: Commonwealth ex rel. Diggs v. Banmiller, 191 Pa. Superior Ct. 101, 155 A. 2d 402. We have already held that, in felonies other than capital offenses, it is not necessary that it should affirmatively appear in the court record that the defendant was present when the verdict was rendered, as it will be presumed that everything was rightly done: Commonwealth ex rel. DeSimone v. Maroney, supra, 179 Pa. Superior Ct. 300, 116 A. 2d 747.
As to the right of a convicted defendant to speak before the pronouncement of sentence, it is well established that this requirement applies only in capital cases: Commonwealth ex rel. Corbin v. Banmiller, 391 Pa. 265, 137 A. 2d 467; Commonwealth ex rel. Brogan v. Banmiller, 184 Pa. Superior Ct. 552, 136 A. 2d 141; Commonwealth ex rel. Alexander v. Banmiller, 184 Pa. Superior Ct. 554, 136 A. 2d 489. Furthermore, the error is not so fundamental as to require the granting of a writ of habeas corpus: Commonwealth ex rel. Harris v. Banmiller, 391 Pa. 132, 137 A. 2d 452. The failure of the trial court to afford a convicted defendant an opportunity to speak before sentence is passed is not reversible error even in capital cases unless the defendant was thereby prejudiced: Commonwealth ex rel. Wilson v. Banmiller, 393 Pa. 530, 143 A. 2d 657.
Finally, appellant complains because he was not afforded an opportunity to be present in person for a hearing before the court below on the present petition. Suffice it to say that, where the petition fails to make out a case entitling the petitioner to the relief afforded by habeas corpus, a hearing is not necessary: Hoffman v. Burke, 378 Pa. 651, 107 A. 2d 866; Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 151 A. 2d 480; Commonwealth ex rel. Gaurich v. Keenan, 181 Pa. Superior Ct. 619, 124 A. 2d 144; Commonwealth ex rel. Shultz v. Myers, 182 Pa. Superior Ct. 431, 128 A. 2d 103.
Order affirmed.