27 A.2d 484 | Pa. Super. Ct. | 1942
Argued April 13, 1942. Without benefit of counsel, Piccerelli and Bacari, on July 18, 1933, were tried before Judge McDEVITT and found guilty as charged in three indictments:
No. 506, July Sessions, 1933, felonious assault and robbery from the person of Helen Figgs;
No. 507, July Sessions, 1933, felonious assault and robbery from the person of John Moore;
No. 509, July Sessions, 1933, carrying concealed deadly weapons.1
They were sentenced on No. 506 and No. 507 to five to fifteen years, sentences to run consecutively so that the total sentence was ten to thirty years. No sentence was imposed on No. 509.
According to the Commonwealth's evidence, defendants had entered an apartment house in daylight on June 2, 1933, bound, gagged and taped with rope and adhesive tape Mrs. Figgs, a woman caretaker, and, after leaving her in a bathroom, had gone to the office of Moore, the manager, where at the point of guns they bound and gagged him, ransacked the office and stole $25 in cash, some jewelry and other valuable articles of personal property.
Both defendants denied any connection with the crime. They said they "were not there."
After the testimony had about concluded, the court turned to Piccerelli, who was then on the witness stand, and asked, "Is that all you have to say?" He replied: "Well, I would like to have somebody here to defend me." He was then asked whether he had a lawyer and *107 replied that he had not, the only lawyer he knew was "the one that defended me before and that is Stevenson."
On November 24, 1941, Piccerelli filed a petition for a writ of habeas corpus. He averred he had "requested the Trial Judge for counsel to defend him in the trial of said case, but said request was not granted," in violation of Article I, Sec. 9, of the Constitution of Pennsylvania and of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.
After hearing, at which the indictments and notes of testimony were introduced and at which Piccerelli gave brief testimonial evidence, Judge SMITH refused to discharge him but granted him a new trial. He appealed on the ground he should have been discharged.
In our opinion, it is now settled by Com. ex rel. McGlinn v.Smith,
There is thus no constitutional right to be supplied with counsel whether or not it is requested.2
But our inquiry is not ended merely because we conclude there is no constitutional right. As President Judge KELLER pointed out in Com. ex rel. Schultz v. Smith,
But the order must be affirmed.
The crimes of which appellant was convicted were committed on June 2, 1933. At that time he was on parole from a sentence, for a similar crime, of from three and a half to ten years, and he "owed six and a half years' back-time." At the time he filed his petition he had served not more than two and a half years of the 1933 sentence. He had not, therefore, as in Com. ex rel. Schultzv. Smith, supra at p. 369, served "a very substantial part of the sentence." And, as we pointed out in that case, our courts, unlike the federal courts, are not bound, even where basic and fundamental error has been committed, to discharge the prisoner but he may be remanded for a new trial. The matter is within the sound discretion of the court hearing the petition.
In our view, the right to have counsel appointed on request must be exercised at a proper time. Judge SMITH concluded that the request should have been granted, even though it was not made until the trial was practically completed. The Commonwealth challenges this and has asked us to revoke that part of the order granting the new trial. Since the Commonwealth has not appealed, we are not in position to pass upon the contention. (Dunsmore v.Franklin Fire Insurance Co.,
The order is affirmed.