Opinion
March 19, 1959.
June 10, 1959.
Criminal law — Practice — Assignment of counsel for defendant — Appeals — Denial of due process — Burden of proof.
1. On appeal by defendant from judgments of sentence following conviction on indictments charging larceny, burglary, and conspiracy, in which it appeared that defendant was represented by counsel at the trial; that he personally prepared briefs in the lower court in support of his motions; that the brief prepared by himself in support of his appeals had brought every question that it was possible to raise to the attention of the appellate court; and that defendant had argued for himself in prior criminal proceedings; it was Held that defendant's contention that the court below erred in failing to assign counsel to prepare and argue his appeals was without merit.
2. To constitute a denial of due process, the burden is on the one who asserts it to show that because of lack of counsel to advise him an ingredient of unfairness actively operated in the process that resulted in his conviction and subsequent confinement. Criminal law — Practice — Plea of guilty — Court records — Burglary — Larceny — Receiving stolen goods — Conspiracy — Joinder — Jurisdiction of court of oyer and terminer and general jail delivery — Trial of defendant alone on conspiracy — Opportunity to confer with counsel preceding trial.
3. Defendant's contention that no plea was entered to either of the bills of indictment was Held to be without merit where it appeared that the court records set forth that the defendant had entered a plea of not guilty on each indictment, that the defendant was present during the trial and was represented by counsel, and that the trial proceeded in all respects consistent with the entry of a plea of not guilty.
4. Where it appeared that the indictments charged defendant with burglary, larceny, receiving stolen goods and conspiracy; that the indictment was captioned in the court of oyer and terminer and general jail delivery; that defendant made no request for certification of the charge of conspiracy to the court of quarter sessions; and that he failed to show that he was in fact prejudiced in his defense by reason of any failure of certification; it was Held that defendant's contentions that (a) the court of oyer and terminer and general jail delivery had no jurisdiction to try the count of conspiracy and (b) that it is always improper to join the count of conspiracy with other counts of indictment, were Held to be without merit.
5. Where it appeared that defendant's co-conspirators each entered a plea of guilty and testified at the trial, and that defendant was tried alone, it was Held that defendant's contention that he could not be tried alone and separate from his co-conspirators was without merit.
6. Defendant's contention that he was given insufficient time to confer with his attorney preceding the trial was Held, in the circumstances, to be without merit.
Criminal law — Practice — Indictments — Quashing — Evidence before grand jury.
7. Defendant's contention that the court below erred in failing to quash the indictments on the ground that the evidence submitted to the grand jury was incompetent, in that the witnesses had no direct knowledge of the facts involved, was Held to be without merit. Criminal law — Evidence — Variance — Property stolen — Building entered — Burglary — Larceny — Conspiracy — Permitting Commonwealth to reopen case — Reason for failure of defendant not to plead guilty — Reference to other difficulties.
8. Defendant's contentions that there was a variance between the bill of indictment and the testimony regarding the contents of the safes which were removed from the home of the victim, and that he could not be convicted on the charges of burglary and larceny unless the evidence disclosed that he entered the building where the offences were perpetrated, although there was testimony that his co-conspirators entered the building in question, were Held to be without merit.
9. Defendant's contention that the court erred in permitting the district attorney, after both sides had rested, to introduce testimony of a witness as to certain conversations he had with defendant in which the defendant told him that he would not plead guilty because of another case pending against him in another county and that the publicity would prejudice his case in the other county, was Held, in the circumstances, to be without merit.
10. It was Held that the testimony of this witness, tending to prove the guilt of the defendant on a charge before the court, was not rendered incompetent because it tended to show that the defendant was in other difficulties, especially where it appeared that defendant had himself voluntarily referred to his prior record, and, also, there was no motion on the part of counsel to have the testimony stricken or any request for a mistrial.
Criminal law — Practice — Charge — Reasonable doubt — New trial — After discovered evidence — Petition for correction of notes of testimony.
11. It was Held that the charge of the trial judge as to reasonable doubt did not contain reversible error.
12. It was Held, in the circumstances, that defendant was properly refused a new trial on the ground of alleged after discovered evidence.
13. It was Held, in the circumstances, that the court below did not commit reversible error in refusing defendant's petition, asserting various reasons, for correction of the notes of testimony.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeals, Nos. 140 and 141, Oct. T., 1959, from judgments of Court of Oyer and Terminer of Bucks County, Nov. T., 1956, Nos. 84 and 85, in case of Commonwealth of Pennsylvania v. Albert A. Kumitis. Judgments affirmed.
Indictments charging defendant with burglary, larceny, receiving stolen goods and conspiracy. Before BIESTER, P.J.
Verdicts of guilty and judgments of sentence on counts charging larceny, burglary, and conspiracy. Defendant appealed.
Albert A. Kumitis, appellant, in propria persona.
Paul R. Beckert, District Attorney, and Ward F. Clark, Assistant District Attorney, for appellee.
Submitted March 19, 1959.
These appeals are from the judgments and sentences of the Court of Oyer and Terminer of Bucks County, Pennsylvania. The defendant, Albert A. Kumitis, was tried under two bills of indictment charging larceny, receiving stolen goods, burglary and conspiracy; was convicted by the jury of larceny, burglary and conspiracy; and was sentenced to 7 1/2 to 15 years on each indictment; the sentences to run concurrently.
These appeals complain of the dismissal by the court below of a rule to show cause why the notes of testimony should not be corrected and the denial of motions in arrest of judgment and for a new trial. President Judge EDWARD G. BIESTER, the trial judge, in support of the court's action, filed a careful opinion in each matter disposing of the many objections raised by the defendant.
A reading of the letters of this defendant to the trial judge, which were made a part of the record, as well as an examination of his brief, disclose a course of conduct toward the court that was clearly disrespectful and impertinent. Despite this attitude by the defendant, Judge BIESTER patiently and painstakingly disposed of every question he raised and the record clearly shows that this defendant, represented by able counsel, had a fair trial in which the judge leaned over backwards to protect his rights under the law. This was so apparent in this record that what we said in Com. v. Helwig, 184 Pa. Super. 370, 134 A.2d 694 (1957), at page 379, in reference to the trial judge in that case, is equally well applicable to Judge BIESTER here:
"We must commend the patience of the trial judge in this case and agree wholeheartedly with his opinion where it states, `Although the courts are and should be concerned that the rights of a defendant charged with crime be fully protected, nevertheless society should also be protected against what we believe to have been in this case unjustifiable and malicious effort to thwart justice and orderly judicial procedure', . . . Judge WOODSIDE of this Court, in an address before the Pennsylvania Bar Association, aptly summed it up when he said, `Drawing the line between the accused and the officers of his government is a difficult and serious problem for appellate courts. If it is drawn too far in one direction, individual freedom will be lost through the abuse of governmental power. If it is drawn too far in the other direction, free government has insufficient protection against those who would destroy it, and its citizens have inadequate protection against the criminals'."
The defendant assigns as error on these appeals, the failure of the court below to assign counsel to prepare and argue these appeals to this Court. This is without merit. Com. ex rel. Hallman v. Tees, 179 Pa. Super. 490, 118 A.2d 273 (1955). Able counsel represented him at his trial; he personally prepared two briefs in the lower court in support of the rule and the motions; and the brief prepared by himself in support of his appeals has brought every question, that it was possible to raise, to the attention of this Court. This is not a new adventure for this defendant as he has argued on his own behalf in Com. v. Kumitis, 73 Pa. D. C. 101 and before this Court in Com. v. Kumitis, 167 Pa. Super. 184, 74 A.2d 741 (1950). We have held that to constitute a denial of due process the burden is on the one who asserts it to show that because of lack of counsel to advise him, "an ingredient of unfairness actively operated in the process that resulted in his conviction and subsequent confinement." Com. ex rel. Hendrickson v. Myers, 182 Pa. Super. 169, 172, 126 A.2d 485 (1956).
As to all of the other matters raised by these appeals, the judgments and sentences of the court below are affirmed on the opinions of President Judge EDWARD G. BIESTER, as reported in 17 Pa. D. C.2d 437 and 17 Pa. D. C. 2d 445.