Com. v. Cannon

Decision Date25 March 1971
Citation442 Pa. 339,275 A.2d 293
PartiesCOMMONWEALTH of Pennsylvania v. James CANNON, Appellant.
CourtPennsylvania Supreme Court
George H. Ross, H. David Rothman, Pittsburgh, for appellant

Robert W. Duggan, Dist. Atty., Carol Mary Los, Asst. Dist. Atty., Pittsburgh, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This is an appeal from a dismissal without a hearing of a petition filed pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180--1 et seq. (Supp.1970).

Appellant James Cannon was found guilty of murder in the first degree following trial by jury and on September 12, 1953, sentenced to life imprisonment. The judgment of sentence was affirmed on direct appeal. See 386 Pa. 62, 123 A.2d 675 (1956). In 1965 appellant filed a petition for a writ of habeas corpus. Following a hearing at which appellant was represented by counsel, the petition was denied. 1 Approximately three years later appellant again sought relief by filing the present Post Conviction Hearing Act petition alleging: (1) ineffective assistance of counsel at trial, (2) the use of perjured testimony at trial, (3) the Commonwealth's suppression of exculpatory evidence, and (4) the discovery of exculpatory evidence subsequent to trial. None of these issues were raised in the 1965 habeas corpus proceeding. 2 The petition was dismissed without a hearing, and this appeal followed.

According to Sections 3(d) and 4(b) of the Post Conviction Hearing Act, an issue is waived and unavailable as a basis for relief if it was not raised in a prior counseled post conviction proceeding actually conducted and petitioner is unable to prove the existence of extraordinary circumstances. The PCHA court dismissed the instant petition on he theory that the issues presently asserted were waived by appellant's failure to raise them in his 1965 habeas corpus petition and by his failure to allege any extraordinary circumstances. We do not agree.

This Court in the past has held without discussion that the waiver provisions of the Post Conviction Hearing Act are fully retroactive. See, e.g., Commonwealth v. Johnson, 433 Pa. 582, 252 A.2d 641 (1969); Commonwealth v. Henderson, 433 Pa. 585, 253 A.2d 109 (1969). Upon further consideration of this matter, we believe that those decisions were ill-founded and now hold that the waiver provisions of the Act do not apply retroactively to habeas corpus proceedings instituted prior to the effective date of the Act.

At common law the dismissal of a habeas corpus petition was not a bar to a second petition or writ. Commonwealth ex rel. Bordner v. Russell, 422 Pa. 365, 221 A.2d 177 (1966); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 3 n. 1, 213 A.2d 613, 615 n. 1 (1965). See also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Darr v. Burford, 339 U.S. 200, 214, 70 S.Ct. 587, 596, 94 L.Ed. 761 (1950); Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 966, 86 L.Ed. 1302 (1942); Wong Doo v. United States, 265 U.S. 239, 240--241, 44 S.Ct. 524, 525, 68 L.Ed. 999 (1924); Salinger v. Loisel, 265 U.S. 224, 229--231, 44 S.Ct. 519, 521, 68 L.Ed. 989 (1924). Thus, absent clear and direct evidence that a petitioner had abused the writ by seeking to litigate his claims in a piecemeal fashion as a means of vexation, harassment and delay, the failure to raise an issue in a prior habeas corpus petition did not foreclose judicial consideration of the merits of that issue in a subsequent proceeding. We so held in Commonwealth ex rel. Bordner v. Russell, supra at 370--372, 221 A.2d at 179--181. See also Commonwealth ex rel. Stevens v. Myers, supra.

In light of the then existing limited notion of finality traditionally associated with and applied to the writ of habeas corpus and in the absence of clear and direct evidence of an abuse of the writ, we cannot conclude that appellant knowingly and understandingly waived his present claims by virtue of his failure to raise them in a pre-PCHA 1965 habeas corpus petition. Accordingly, he must now be afforded an adjudication on the merits of those claims.

The order dismissing appellant's petition is vacated and the record remanded for further proceedings consistent with this opinion. 3

BELL, C.J., dissents.

COHEN, J., did not participate in the decision of this case.

O'BRIEN, J., took no part in the consideration or decision of this case.

1 Both prior and subsequent to the 1965 state...

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26 cases
  • Commonwealth v. Schmidt
    • United States
    • Pennsylvania Supreme Court
    • January 19, 1973
    ...582, 252 A.2d 641 (1969); Commonwealth v. Henderson, 433 Pa. 585, 253 A.2d 109 (1969). The error in those cases, an error corrected in Cannon, supra, was not recognizing that section 4's rebuttable presumption that failure to raise an issue in a pre-PCHA habeas corpus proceeding was 'knowin......
  • Com. v. Schmidt
    • United States
    • Pennsylvania Supreme Court
    • January 19, 1973
    ...the burden of rebutting the presumption is upon the PCHA petitioner. 19 P.S. § 1180--4(b)(2) (Supp. 1972--73). In Commonwealth v. Cannon, 442 Pa. 339, 275 A.2d 293 (1971), we held that section 4 waiver provisions did not apply to the failure to raise issues in a pre-PCHA habeas corpus petit......
  • United States ex rel. Johnson v. Cavell
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 3, 1972
    ...was not a knowing and understanding bypass. See Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521, 526 (1972); Commonwealth v. Cannon, 442 Pa. 339, 275 A.2d 293 (1971); Commonwealth v. Kravitz, 441 Pa. 79, 269 A.2d 912 (1970); Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968); ......
  • Commonwealth v. Jones
    • United States
    • Pennsylvania Supreme Court
    • December 30, 1971
    ... ... earlier 1966 habeas corpus petition. That result is contrary ... to this Court's decision in Commonwealth v. Cannon, 442 ... Pa. 339, 275 A.2d 293 (1971), where we held that the waiver ... provisions of the Post Conviction Hearing Act do not apply ... ...
  • Request a trial to view additional results

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