Commonwealth v. James

¶1Opinion by

¶2On Jane 1, 1954, the appellant, Isaac James, in the presence of and upon the advice of legal counsel entered a general plea of guilty to an indictment charging him with murder in the then Court of Oyer and Terminer and General Jail Delivery of Philadelphia County. The plea was accepted by a three-judge court, which then conducted an evidentiary hearing and adjudged James guilty of murder in the first degree. He was sentenced to imprisonment for life. No appeal was entered from the judgment.

¶3In 1968, James instituted post-conviction relief proceedings under the Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. 1180-1 et seq. (Supp. 1970) challenging the validity of his 1954 conviction and sentence. Following an evidentiary hearing, relief was denied and this appealed filed.

¶4James was taken into police custody following the fatal stabbing of Harold Holmes after dissension arose between them from an incident in a basketball game played in a neighborhood public school yard. James was fifteen years of age at the time. Subsequent to his arrest, he was taken without counsel before a judge sitting in the Juvenile Court Division of the Municipal *208Court (now Court of Common Pleas, Family Division), who certified the case over to the district attorney for prosecution. These proceedings were not stenographically reported, or at least no record thereof is now available.

¶5The Act of June 2, 1983, P. L. 1433, §18, 11 P.S. 260, provides that where a child, being above the age of fourteen years, has been held for any offense, other than murder, punishable by imprisonment in a state penitentiary, a judge in the juvenile court having jurisdiction may certify the case to the district attorney for prosecution the same as if jurisdiction of the juvenile court had never attached, “if, in his opinion, the interests of the State require a prosecution of such case on an indictment.” In Gaskins Gase, 430 Pa. 298, 244 A. 2d 662 (1968), we held that while the juvenile court has jurisdiction to determine delinquency, no matter what crime serves as the basis therefor, this does not oust the jurisdiction of the court of oyer and tei*miner over murder cases. If, at the hearing in the juvenile court, a prima facie ease of murder is made out against a juvenile, then the court must hold the accused for prosecution in the court of oyer and terminer, subject, however, to the right of that court to return jurisdiction of the case to the juvenile court if it is determined such is in the best interests of the child and society.

¶6James now maintains the hearing in the Juvenile Court and the certification of the case to the Court of Oyer and Terminer violated due process, and therefore his subsequent plea of guilty and judgment of sentence must be invalidated. Lack of due process is alleged for the following reasons: (1) absence of counsel for James at the hearing; (2) unavailability of a transcript of the proceedings; (3) the hearing court abused its discretion in certifying the case; (4) the ruling in Gaskins, supra, violates the Fourteenth Amendment to the United States Constitution in that there is no reasonable basis *209for treating juveniles accused of murder differently than those accused of less serious crimes.

¶7A minute Study of the record discloses that Questions Nos. 2, 3 and 4, supra, were never raised in the court below,1 and hence, may not be raised for the first time on appeal. Commonwealh v. Payton, 431 Pa. 105, 244 A. 2d 644 (1968).

¶8As to the contention that due process was violated by the absence of counsel at the certification hearing, there is no doubt but that the United States Supreme Court recently ruled that the assistance of counsel at such a hearing is constitutionally mandated. See Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). See also, Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045 (1966). But we are not persuaded that this ruling applies retroactively. See and compare, Mordecai v. United States, 421 F. 2d 1133 (D.C. Cir. 1969), cert. denied 397 U.S. 977, 90 S. Ct. 1098 (1970) ; Brown v. New Jersey, 395 F. 2d 917 (3d Cir. 1968) ; Kemplen v. Maryland, 295 F. Supp. 8 (D. Md. 1969); People v. Terpening, 16 Mich. App. 104, 167 N.W. 2d 899 (1969); State v. Johnson, 5 N.C. App. 469, 168 S.E. 2d 709 (1969); Commonwealth v. Godfrey, 434 Pa. 532, 254 A. 2d 923 (1969); Commonwealth v. Willman, 434 Pa. 489, 255 A. 2d 534 (1969).

¶9The certification hearing concerned not a determination of delinquency, but merely a waiver of jurisdiction. The fundamental fairness, truth and accuracy of the subsequent guilt-determining process was not affected by the lack of counsel at this hearing.

¶10Nor can the denial of counsel at a certification hearing be equated with the denial of such assistance at trial or during proceedings to determine guilt. This *210is quite apparent from the majority opinion in Coleman v. Alabama, supra, wherein the Court stated that absence of counsel at a preliminary commitment hearing (similar if not the same as a certification hearing) would if there were an absence of prejudice, constitute harmless error. Certainly, the denial of counsel at trial would never be harmless error. See Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S. Ct. 824 (1967).

¶11Finally, it is urged that the guilty plea was involuntary and unknowingly made; the trial court erred in accepting the plea without proper inquiry directed to James personally; and James was denied effective assistance of trial counsel.2 These issues were correctly resolved by Judge Sloans in the court below. See United States ex rel. Grays v. Rundle, 428 F. 2d 1401 (3d Cir. 1970); Commonwealth v. Roundtree, 440 Pa. 199, 269 A. 2d 709 (1970); Commonwealth v. Savage, 433 Pa. 96, 249 A. 2d 304 (1969); and Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A. 2d 196 (1968).

¶12Order affirmed.