177 Pa. Super. 133 | Pa. Super. Ct. | 1955
Opinion by
Relator, who is confined in the Western State Penitentiary, serving a sentence for robbery, filed a petition for writ of habeas corpus in the Court of Common Pleas of Erie County on June 8, 1954. In his petition he averred that “he was ushered into a Library within the Erie Court House, locked within during the entire selection of the jury.” A rule was granted and an answer was filed by the District Attorney of Erie County. On June 23, 1954, after a full hearing, at which relator was represented by counsel, the rule was
There is no merit to the contention of appellant that he was locked in the “Law Library” in the Erie County Court House during the selection of the jury which was to try his case. The record clearly reveals that the room in which appellant was interviewed by his counsel is known as the Grand Jury Room and adjoins the Law Library. There are two doors in this room, one opening into the Law Library and the other opening into a corridor which connects the two wings of the Court House. The Chief County Detective testified that the door opening into the corridor could not be locked in such a manner that it would be impossible to go out from the inside. His testimony was corroborated by appellant’s counsel at the trial, who testified that this door could be automatically locked from the outside but that it was possible to open the door from the inside at any time. Furthermore, appellant admitted that the door from the Grand Jury Room into the Law Library was open during the time he spent waiting for his counsel. There is thus no basis for appellant’s claim that he was locked in the Law Library and thus prevented from being present at the selection of the jury in the trial of his case.
It is admitted that although his attorney was present, appellant was not present when the jury was impaneled. Counsel for the appellant at his trial testified at the hearing on the rule as follows: “A. The morning of the trial, as I can recall it, I came down to the courthouse and got Mr. Hancock out of the main courtroom which is located in the west wing of our courthouse here. I took him into what we know in Erie County as the grand jury room, and for the purpose of the record, permit me to state that the Erie County Courthouse is divided into two wings, the east
It is also noted that appellant, in testifying about the discussion he had with his counsel prior to the selection of the jury, stated that his counsel brought in a list of jurors and asked him “Do you know any of these people?” and he replied: “No.”
It is fundamental that a defendant charged with a felony shall be permitted to be present at every stage of the trial. Com. ex rel. Butler v. Cloudy, 171 Pa. Superior Ct. 573, 91 A. 2d 318. However, under the law the defendant may waive his right to be present. Pertinent and applicable here is the following statement of Mr. Justice Chidsey in Com. v. Diehl, 378 Pa. 214, 107 A. 2d 543: “In capital cases the defendant’s
Where it is shown, as it is here, that in a noncapital felony case the jury was selected in the presence of competent counsel of his own choice but in the absence of the defendant who is free on bail and no possible prejudice is suggested as resulting from defendant’s absence, his absence will be construed as a voluntary waiver of his right to be present.
The order of the court below is'affirmed.