185 Pa. Super. 176 | Pa. Super. Ct. | 1958
Opinion by
This is the fourth appeal to this Court by relator, Henry Paylor.
Relator was tried and convicted in June, 1944, in the Court of Oyer and Terminer of Allegheny County, upon bills of indictment charging rape, robbery with aggravating circumstances, and assault and battery with intent to ravish. On June 13, 1944, he was sentenced by that court to the Western State Penitentiary to serve a term of not less than seven and one-half years and not more than fifteen years on the charge of rape; a term of five to ten years on the robbery charge; and a term of two and one-half to five years on the charge of aggravated assault and battery with
The repetitious attack upon the sentence for robbery with aggravating circumstances is devoid of merit. In disposing of the last appeal of this relator in Com. ex rel. Paylor v. Johnston, supra, 180 Pa. Superior Ct. 228, 230, 119 A. 2d 562, 563, we stated: “And he contends that his sentence on Bill No. 2, June Sessions, 1944, charging robbery with aggravating circumstances was excessive. . . . the sentence, on the conviction of the kind of robbery defined by §705 of the Penal Code of June 24, 1939, P. L. 872, 18 PS §4705, of from 10 to 20 years imprisonment was proper. He was not charged nor convicted of robbery as defined by §704 of the Code, 18 PS §4704, which carried with it a lesser penalty of a maximum term of imprisonment of but 10 years.” The bill charging robbery with aggravating circumstances was drawn in language approved by this Court in Com. ex rel Conrad v. Ashe, 142 Pa. Superior Ct. 254, 256, 15 A. 2d 926; it clearly indicates that it charges the more aggravated crime. The trial court had the power and authority to reconsider and change the sentence within the term. Com. ex rel. Wallace v. Burke, 158 Pa. Superior Ct. 612, 45 A. 2d 871. There is no ground for relator’s complaint that the sentence was increased from the maximum which could have been imposed under an indictment charging robbery to the maximum which can be imposed under an indictment charging robbery with aggravating circumstances. The indictment upon which relator was tried and convicted charged. the more serious crime and sustains the sentence finally
We turn therefore to the constitutional question in this proceeding
The Constitution of Pennsylvania guarantees an accused a public trial. Article I, §9, provides: “In all criminal prosecutions the accused hath a right . . ., in prosecutions by indictment or information, [to] a speedy public trial by an impartial jury of the vicinage; . . .”
May an accused effectively waive the right to the presence of the general public at his trial? The right to a public trial as it relates to an accused is a basic right; but constitutional rights and privileges in favor of an accused may be waived. Lavery v. Commonwealth, 101 Pa. 560, 564, 565. For example, he may waive the right to a jury trial (Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854; Com. v. Kramer, 146 Pa. Superior Ct. 91, 101, 22 A. 2d 46); and in cases other than capital, he may waive the right to be tried by twelve jurors (Com. v. Petrillo, 340 Pa. 33, 43, 16 A. 2d 50; Com. ex rel. Ross v. Egan, 281 Pa. 251, 126 A. 488). An accused may waive the right to counsel (Adams v. United States, 317 U.S. 269, 275, 63 S. Ct. 236, 87 L. Ed. 268, 273) ; the right to meet witnesses face to face (Com. v. Petrillo, supra, 340 Pa. 33, 44, 16 A. 2d 50) ; the right, in a noncapital case, to be present at every stage of the trial (Com. ex rel. Hancock v. Maroney, 177 Pa. Superior Ct. 133, 136, 110 A. 2d 923); the right against self-incrimination (Com. v. Bartell, 184 Pa. Superior Ct. 528, 544, 136 A. 2d 166); and the right to a bill of indictment by a grand jury (Com. ex rel. v. Francies, 250 Pa. 496, 95 A. 527). In the light of these decisions we perceive no convincing reason why an accused may not also waive the right to a public trial. 14 Am. Jur., Criminal Law, §143, p. 869. It would seem to be no more basic to an accused than other constitutional rights which admittedly may be waived. In United States v. Sorrentino, 3 Cir., 175 F. 2d 721, 723,
It is argued on behalf of relator that the right to a public trial is too fundamental to be Avaived because the public has an interest in the trial of criminal cases. In a broad sense the right to a public trial is a right of the public. United States v. Sorrentino, supra, 3 Cir., 175 F. 2d 721, 722, 723. See footnote 24, Re Oliver, supra, 333 U. S. 257, 270, 68 S. Ct. 499, 92 L. Ed. 682, 692. “While . . . the right thus accorded to members of the public to be present at a criminal trial as mere spectators may not be wholly logical it has been imbedded in our Constitution as an important safeguard not only to the accused but to the public generally.”
It is also contended that a waiver of the right could not be made on relator’s behalf by his court-appointed counsel. Counsel, whether court-appointed or employed by relator, was in charge of relator’s defense and had authority to act in relator’s behalf in all matters connected with the trial. And this was a proper matter on which counsel could act for the defendant. There is nothing to indicate that relator was not consulted by his counsel in the matter or that relator voiced his objection to the action of counsel. The presumption is that the trial of relator fourteen years ago was regular and lawful, and that he was afforded his constitutional rights. Com. ex rel. Popovich v. Claudy, 170 Pa. Superior Ct. 482, 485, 87 A. 2d 489. It is also presumed that counsel acted by authority of relator. As said in Miller v. Preston, 154 Pa. 63, 64, 25 A. 1041: “He is an officer of the court, and what he does in the course of his business is presumed to be by authority of his client.” This presumption is strengthened by relator’s acquiescence in the proceeding, as the action was taken in his. presence during the trial. Rarick v. McManomon, 17 Pa. Superior Ct. 154, 157. The authority of counsel duly appearing for a defendant in a criminal case is the same generally whether he is retained by a defendant or whether he is properly appointed by the court.
It may be, as argued by present counsel for relator, that a defendant or his counsel does not' waive the
Again we say that relator suffered no denial of due process in his trial in 1944.
The order of the court below is affirmed.
See Com. ex rel. Paylor v. Claudy, 173 Pa. Superior Ct. 336, 98 A. 2d 468 (two appeals); Com. ex rel. Paylor v. Johnston, 180 Pa. Superior Ct. 228, 119 A. 2d 562. Relator previously petitioned the Supreme Court of Pennsylvania for a writ of habeas corpus. Com. ex rel. Paylor v. Claudy, 366 Pa. 282, 77 A. 2d 350.
A bearing on the petition and answers was held in the Court of Common Pleas of Allegheny County before President Judge Mc-Naugher who, in discharging the rule to show cause and dismissing relator’s petition, said: “The trial of the petitioner’s case was in 1944, thirteen years ago, and this question has never been raised before, either at the trial or in his numerous habeas corpus petitions and other proceedings. It is evident that he not only acquiesced in the exclusion of the public but has never until now felt that he was in any way prejudiced thereby. No right of his was violated.”
See, also, Article I, §11, Pennsylvania Constitution: “All courts shall be open;. . ."
Duke of Yorke’s Book of Laws. (Compiled and published under the direction of the Secretary of the Commonwealth, 1879, p. 100.)
Cited and approved in United Press Associations v. Talente, 308 N. Y. 71, 128 N. E. 2d 777, 780, 781.
It may also be said: “. . it is one of the essential qualities of a Court of Justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, — provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, — have a right to be present for the purpose of hearing what is going on.’ ” United States v. Kobli Cir., 172 F. 2d 919, 924, quoting Daubney v. Cooper, 1829, 10 B. & C. 237, 240, 109 Eng. Re. 438, 440.