Com. ex rel. Norman v. Banmiller

• Citation: 395 Pa. 232,149 A.2d 881
• Parties: COMMONWEALTH of Pennsylvania ex rel. Charles NORMAN, Appellant, v. William J. BANMILLER, Warden, Eastern State Penitentiary, Philadelphia, Pennsylvania.
• Decision Date: 06 April 1959
• Court: United States State Supreme Court of Pennsylvania

149 A.2d 881

395 Pa. 232

COMMONWEALTH of Pennsylvania ex rel. Charles NORMAN, Appellant, v. William J. BANMILLER, Warden, Eastern State Penitentiary,

Philadelphia, Pennsylvania.

Supreme Court of Pennsylvania.

April 6, 1959.

Christopher F. Edley, Moore, Lightfoot & Edley Lewis Tanner Moore, Philadelphia, for appellant.

Charles Lee Durham and Juanita Kidd Stout, Asst. Dist. Attys., James N. Lafferty, First Asst. Dist. Atty., Victor H. Blanc, Dist Atty., Philadelphia, Pa., for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN and BOK, JJ.

BELL, Justice.

Petitioner was convicted in May, 1949, on eight bills of indictment charging armed robberies, and was sentenced to 80 to 160 years. On July 1, 1949, he was convicted by a jury of first degree murder occurring during a robbery on March 12, 1949, in which he shot and killed Herman Weintraub, and was sentenced to life imprisonment.

Petitioner on February 10, 1958, applied for a writ of habeas corpus from his conviction of murder alleging (1) that his confession was coerced; and (2) that his trial was so permeated with trial errors that collectively these errors constituted fundamental error amounting to a denial of due process of law.

The Commonwealth filed an answer denying the facts alleged, and averring particularly (a) that petitioner's confession was voluntary, and (b) the question of whether the confession was voluntary or coerced, was submitted to the jury, and (c) that the jury found after hearing voluminous testimony thereon, that the confession was not coerced. The lower Court dismissed the petition for a writ of habeas corpus after hearing argument, but without hearing any evidence.

In Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141, at page 144, 137 A.2d 236, at page 238, this Court, speaking through Chief Justice Jones, said: 'The remedy for trial error is by motion for new trial followed, if necessary, by an appeal. We, as well as the Superior Court, have frequently recognized that a habeas corpus petition is not available for the correction of trial errors which could have been reviewed and corrected on appeal; it is not a substitute for an appeal or for a writ of error or for a motion for a new trial. Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 126, 75 A.2d 593; Commonwealth ex rel. Ketter v. Day, 181 Pa.Super. 271, 273, 124 A.2d 163; Commonwealth ex rel. Jones v. Day, 181 Pa.Super. 37, 39, 121 A.2d 896; Commonwealth ex rel. Ruger v. Day, 176 Pa.Super. 479, 482, 108 A.2d 818; Commonwealth ex rel. Cobb v. Burke, 176 Pa.Super. 60, 63, 107 A.2d 207; Commonwealth ex rel. Sharpe v. Burke, 174 Pa.Super. 350, 354, 101 A.2d 397.'

However, where the record shows a trial or sentence which was so fundamentally unfair as to amount to a denial of due process, or that some basic fundamental error was committed which deprived defendant of one of his constitutional rights, relief may be sought by habeas corpus. Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 347, 106 A.2d 587; Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 494, 96 A.2d 122; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 100 L.Ed. 126; Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154. As to what constitutes a denial or violation of due process of law, see Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549; Brown v. Allen, 344 U.S. 443, 465, 73 S.Ct. 397, 97 L.Ed. 469; Speller v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Daniels v. Allen, 344 U.S. 443, 73 S.Ct. 397, 437, 97 L.Ed. 469; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Commonwealth ex rel. Sheeler v. Burke, 367 Pa. 152, 7. A.2d 654; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

Under either or both of the aforesaid tests, there is no merit in the applicant's petition.

The principal and real question which petitioner is now raising in this habeas corpus proceeding, viz., the voluntariness or coercion of his confession, was raised by him and was passed upon by the jury adversely to him after hearing conflicting evidence. 'When the facts admitted by the state show coercion, Ashcraft v. State of Tennessee, 327 U.S. 274, 66 S.Ct. 544, 90 L.Ed. 667, a conviction will be set aside as violative of due process. Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716.' Brown v. Allen, 344 U.S. 443, 475, 73 S.Ct. 397, 416, 97 L.Ed. 469. The facts admitted by the State do not show coercion, and under such circumstances this Court will not re-examine the question of the voluntariness of the confession which was passed upon by the jury adversely to defendant.

This Court pertinently said in Commonwealth ex rel. Geiger v. Burke, 371 Pa. 230, at page 232, 89 A.2d 495, at page 496:

'The present petition is an attempt to reopen the same question of fact which was resolved against relator by the jury at his trial, and the evidence sought to be introduced in support of the petition is similar in kind to that presented at the trial. We have repeatedly held that the writ of habeas corpus cannot be used to reexamine matters of fact that were passed on by the jury at the trial. Commonwealth ex rel. Carey v. Montgomery County Prison Keeper, 370 Pa. 604, 88 A.2d 904.'

If the law were otherwise, there would be no finality to any conviction or sentence because the person who was convicted and sentenced could file repeated petitions for a writ of habeas corpus raising, in almost identical language, the very issues or matters of fact which were previously decided against him by the jury and/or by this Court and demand and redemand and re-redemand the right to present testimony to substantiate his allegations. The orderly administration of law, the protection of Society, and speedy impartial Justice for all, require that the validity and finality of an issue or of a sentence should not be subject to repeated attack after it has once been judicially settled.

Was a hearing necessary in order to determine the factual issues raised by the petition and denied by the answer? The answer to this question is 'no', since the facts alleged are refuted by the record, or were found adversely to petitioner by the jury.

In Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, at pages 494, 495, 96 A.2d 122, at page 125, the Court said: 'Where the petition or application itself, or where the record upon which it is based, or both together, fail to clearly make out a case entitling a relator to the relief afforded by habeas corpus, a hearing is not necessary [citing cases].' Cf. also Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.

Petitioner also alleged as error the failure of the trial Judge to provide him with sufficiently astute counsel. The Constitution of Pennsylvania provides in Article I, § 9, P.S.: 'In all criminal prosecutions the accused hath a right to be heard by himself and his counsel * * *'. Moreover, in a capital case if an accused is financially unable, or for any reason is unwilling or unable to engage counsel, the Court is required to appoint counsel at the expense of the county. Commonwealth v. Thompson, 367 Pa. 102, 79 A.2d 401; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1; Act of May 22, 1907, P.L. 31, as amended by Act of April 6, 1949, P.L. 406, 19 P.S. § 784. See also: Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739.

However, the fact that a criminal, after conviction, believes that his trial was not wisely conducted by his counsel, furnishes no ground for the issuance of a writ of habeas corpus. Were it otherwise, no criminal conviction would be final as long as the defendant had the financial means to engage new counsel who, in the light of hindsight, could astutely point out errors which he believes were committed by trial counsel. In the instant case it is represented to this Court and not denied, that the petitioner engaged and was represented by a reputable and experienced member of the Bar.

One other point remains for consideration. Petitioner alleges that the trial Court erred in receiving testimony concerning defendant's prior criminal record solely for the purpose of determining his punishment. Petitioner's criminal record, i. e., his prior convictions before and after the murder, and the confessions and admissions which were made by him before his trial on the murder indictment, was properly admissible for the sole purpose of enabling the jury to determine defendant's sentence. Commonwealth v. Petrillo, 341 Pa. 209, 19 A.2d 288; Commonwealth v. Cannon, 386 Pa. 62, 123 A.2d 675; Commonwealth v. Thompson, 389 Pa. 382, 133 A.2d 207; Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362; Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733; Commonwealth v. Turner, 371 Pa. 417, 88 A.2d 915, 32 A.L.R.2d 346; Commonwealth v. Simmons, 361 Pa. 391, 65 A.2d 353; Commonwealth v. DePofi, 362 Pa. 229, 66 A.2d 649. See also Commonwealth v. Darcy, 362 Pa. 259, 281, 282, 66 A.2d 663.

We have repeatedly stated that we will not overrule our prior decisions on this point which permit such testimony believing, as we do, that if the law is to be changed the change should be made by the Legislature. Commonwealth v. Thompson, 389, Pa. 382, 401, 133 A.2d 207; Commonwealth v. Common, 386 Pa. 62, 64, 123 A.2d 675; Commonwealth v. LaRue, 381 Pa. 113, 120, 112 A.2d 362; ...