Com. ex rel. Stevens v. Myers

• Decision Date: 29 September 1965
• Citation: 213 A.2d 613,419 Pa. 1
• Parties: COMMONWEALTH of Pennsylvania ex rel. Rayford G. STEVENS, Appellant, v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 613

213 A.2d 613

419 Pa. 1

COMMONWEALTH of Pennsylvania ex rel. Rayford G. STEVENS, Appellant, v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.

Supreme Court of Pennsylvania.

Sept. 29, 1965.

Rayford Stevens, in pro. per.

Ralph B. D'Iorio, Asst. Dist. Atty., Domenic D. Jerome, First Asst. Dist. Atty., Jacques H. Fox, Dist. Atty., for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

ROBERTS, Justice.

This appeal questions the correctness of the dismissal, without hearing, of a 1963 petition for a writ of habeas corpus contesting a 1954 murder conviction.

After appellant-petitioner Stevens' 1954 jury trial resulted in a verdict of murder in the first degree on a felony-murder charge, the trial judge imposed a sentence of life imprisonment. Stevens, represented by court appointed counsel at trial, took no direct appeal but in 1959 he attacked the conviction by way of a petition for a writ of habeas corpus. That petition was dismissed by the Court of Common Pleas of Delaware County and the dismissal was affirmed by this Court. Commonwealth ex rel. Stevens v. Myers, 398 Pa. 23, 156 A.2d 527 (1959). Certiorari was denied by the Supreme Court of the United States. 363 U.S. 816, 80 S.Ct. 1254, 4 L.Ed.2d 1156 (1960). In 1963 Stevens, again contending that his murder conviction was invalid, once more sought a writ of habeas corpus. ¹ The petition was dismissed without hearing and the present appeal follows the dismissal of this second petition. ²

I

At the outset, we feel constrained to discuss an important issue of prematurity which was not raised by the Commonwealth or noticed by the court below. ³

At the time Stevens was sentenced to life imprisonment on the murder conviction, he was already serving a sentence for an unrelated Pennsylvania robbery. The trial judge explicitly directed that the life sentence commence at the expiration of the ten to twenty year robbery sentence. ⁴ Since the robbery sentence was to run from April 14, 1954, the expiration date of the minimum was April 14, 1964 and the expiration date of the maximum will be April 14, 1974. Sentences are considered imposed for the maximum term unless parole intervenes. Commonwealth ex rel. Appellant [sic] v. Ashe, 320 Pa. 341, 344, 345, 182 A. 229, 230-231 (1936); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa.Super. 156, 161, 149 A.2d 501, 504 (1959). Since petitioner has not been paroled, he is presently serving a sentence which he does not challenge. ⁵ Under such circumstances the rule has been that since the writ of habeas corpus is said to test only the legality of present restraint, the petition must be dismissed as premature because the propriety of the present confinement is unquestioned. E. g., Commonwealth ex rel. Lewis v. Ashe, 335 Pa. 575, 7 A.2d 296, cert. denied, 308 U.S. 596, 60 S.Ct. 132, 84 L.Ed. 499 (1939) (per curiam) (attacked sentence for escape; held premature because still serving basic sentence). ⁶ In view of vastly changed circumstances affecting the use of the writ, we believe it appropriate to reconsider this judicial rule governing the function of the writ as it applies to cases of the present nature. ⁷

The prematurity concept has been enunciated not only in considering the availability of the writ of habeas corpus ⁸ as used in Pennsylvania, but also as a principle applicable to the federal writ, ⁹ and the writ as utilized in other states. ¹⁰ Most frequently cited as authority for the proposition is McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934). McNally undertook to discern the scope of the federal writ as conceived in a federal statute. That statute provided that the federal writ might issue 'for the purpose of an inquiry into the cause of restraint * * *.' The statute contained the express requirement that the petitioner be in 'custody' of the United States. ¹¹ In interpreting the statute, the Supreme Court of the United States looked to the common law for guidance in delineating the use of the writ. Finding no case prior to enactment of the statute in which the writ was used to determine a question which, even if decided favorably to the petitioner, could not have resulted in the petitioner's immediate release, that Court held that '[s]uch use of the writ in the federal courts is without the support of history or of any language in the statutes which would indicate a purpose to enlarge its traditional function.' 293 U.S. at 138, 55 S.Ct. at 27. Since McNally does no more than define the role of the federal writ, it is, of course, not binding on this Court, although its careful historical discourse is helpful. Most subsequent decisions rely directly on McNally or rely on cases which can be traced to McNally. Subsequent decisions have not paused to re-examine the serious consequences to our system of justice which are attendant upon the rule when blanketly applied in modern times. One federal court of appeals, however, has recently ruled contrary to McNally in the belief that the 'restraint' requirement has now been relaxed by the Supreme Court. ¹²

In earlier times petitions for writs of habeas corpus were a far greater rarity than today, at least in Pennsylvania. Today's frequent resort to the writ can be laid to the burgeoning use of the writ as a means of attacking criminal convictions collaterally. This phenomenal development of the writ as an instrument of postconviction litigation was not foreseen when the common law deemed the writ competent to test only sentences under which the petitioner was then serving. ¹³

That the scope of the writ has developed greatly with the exigencies of the time as a postconviction remedy seems so undeniable that extensive citation and comparison of cases might now well seem a needless exercise. ¹⁴ There is no other comprehensive method of collateral attack in Pennsylvania. ¹⁵ Thus this growth of the writ is not surprising or unwarranted in view of our continuing efforts to provide a full hearing for claims of federal constitutional violations ¹⁶ and in the face of the present urgent necessity for a state postconviction avenue which will afford an adequate corrective process for hearing and determining alleged violations of federal constitutional guarantees. See, e. g., Case v. State of Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965); Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U.Pa.L.Rev. 461, 465-66, 469-70 (1960); Meador, Accommodating State Criminal Procedure and Federal Postconviction Review, 50 A.B.A.J. 928, 929-30 (1964). But in spite of the incontestable postconviction development of the writ of habeas corpus in Pennsylvania, the prematurity concept has been carried over from historical uses of the writ, seemingly without regard to the transformed surroundings of the writ when used in postconviction proceedings.

Even so, the changed quality of some petitions does not alone account for the dissatisfaction to be found in the prematurity limitation today. What compounds the problem and renders the concept especially detrimental to our ordered system of justice is the increased variety of contentions underlying the current petitions and the large number of convictions which are potentially voidable because of recent developments in the law. Thus the quantity of cases in which the doctrine comes to bear magnifies the difficulties. The number of cases which must be retried because of decisions such as those in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), are rapidly pyramiding. ¹⁷ Moreover, the most cursory study of appellate decisions in this Commonwealth over the past few years will readily reveal that increasing areas of possible invalidation of convictions are being recognized on postconviction attacks by way of habeas corpus petitions. The result is a roughly corresponding growth in the number of retrials made necessary.

The prematurity doctrine, when now applied to petitions raising contentions which, if sustained, would require a new trial, imports added dangers into today's changed situation, a situation already fraught with numerous difficulties. By conservative estimate a retrial ordered on a petition for habeas corpus would come no earlier than four years after the original trial if the petition is promptly brought and disposed of in the normal course. Actually, the intervening time is likely to be substantially greater. In the present case, for example, the petition was filed ten years after the original trial. The prematurity concept, if applied, would compound the situation, were a hearing or retrial required, by doubling this time and postponing the hearing or retrial for ten more years, until after 1974. ¹⁸ In metropolitan areas and in our more populous counties, even now suffering under already burdensome court dockets, the delay is almost certain to be further increased.

Such delay naturally places a serious and sometimes fatal strain on the Commonwealth's ability to present its case on retrial. Witnesses may have become scattered or disappeared entirely, memories may have faded and other evidence may no longer be accessible. Neither is it to be overlooked that habeas corpus hearings may be rendered progressively more difficult with the passage of time. 'It is needless to dwell on the desirability of prompt review and on the difficulties presented by delayed review, difficulties which, among other things, affect both the ability to conduct satisfactorily a comprehensive habeas corpus hearing and the ability to proceed effectively with a new trial if one is required.' Commonwealth ex rel. Harbold v. Myers, 417 Pa. 358, 367, 207 A.2d 805, 810 (1965). We are also mindful that, in addition to the heavy disadvantage to the Commonwealth already noted, similar evidentiary considerations...