Com. v. Dooley
| Decision Date | 16 June 1967 |
| Citation | 232 A.2d 45,209 Pa.Super. 519 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH of Pennsylvania v. John DOOLEY, Jr., Appellant. |
George T. Forssell, Jr., Titusville, for appellant.
Paul D. Shafer, Jr., Asst. Dist. Atty., with him John Fuller, Asst. Dist. Atty., for the Commonwealth, appellee.
James M. Carter and Marjorie Hanson Matson, Pittsburgh, for amicus curiae.
Before ERVIN, P.J., and WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN and SPAULDING, JJ.
The appellant, John Dooley, pleaded guilty to a charge of assault with intent to ravish on November 12, 1964. He was not sentenced pursuant to the provisions of The Penal Code, 18 P.S. § 4722. Dooley was sentenced instead on February 5, 1965 to a term of one day to life under the Barr-Walker Act, 1951, P.L.1851, 19 P.S. §§ 1166--1174. The procedures under which that sentence was imposed were apparently consistent with the then existing interpretation of that act. Dooley was subjected to psychiatric examination and a report based on that examination, plus matters not in the record of the criminal proceedings, was made by the Department of Welfare to the sentencing court on January 14, 1965. This report did not state that Dooley is 'mentally ill' but stated that 'He is a danger to the public if at large both from the standpoint of his fire setting, which is in itself a form of sexual deviation, and from the standpoint of his direct sexual aggressive behavior.' This report was based upon an underlying psychological and psychiatric examination which incorporated evidentiary matter not adduced during the course of trial.
On April 28, 1966, the Court of Quarter Sessions of Crawford County vacated the Barr-Walker sentence imposed upon Dooley and ordered a new hearing to meet the due process requirements held requisite by the United States Court of Appeals for the Third Circuit in Barr-Walker proceedings: United States ex rel. Gerchman v. Maroney, 3 Cir., 355 F.2d 302 (discussed infra). This new hearing was held on July 11, 1966. No new examinations were made of Dooley, but the assistant superintendent of the Warren State Hospital, Dr. Urbaitis, was called. Dr. Urbaitis testified that the original report was prepared by other doctors under his supervision and that he also had some personal contact with Dooley during the course of the examination. Objection was made to any testimony from Dr. Urbaitis which was not the result of his own observation but this was overruled.
Dr. Urbaitis also testified that, in his opinion, Dooley was not 'mentally ill' but that he did present a danger to society.
Another psychiatrist, Dr. Baker, a psychiatric consultant to the State Correctional Institution at Pittsburgh, also testified at the July 11 hearing. In Dr. Baker's opinion, Dooley suffers from a 'characterological problem' which the Pennsylvania state mental hospitals are apparently incapable of treating. Dr. Baker also stated that Dooley is not 'a well man' but that he is psychotic at certain periods.
In addition to the two doctors, the testimony of arresting officer, Trooper Lococo, was admitted to show circumstances of the arrest and identification of Dooley for the offense of assault with intent to ravish.
On December 29, 1966, the Court of Quarter Sessions handed down an order which, as modified the following day, reinstated the original Barr-Walker sentence imposed February 5, 1965. In an opinion filed in support of this order, the court held that the Barr-Walker Act was constitutional and that the Gerchman case requires only that a representative of the Department of Public Welfare appear to confront the accused and explain the meaning of the report required by the Barr-Walker Act. Dooley now appeals from this judgment and order.
The American Civil Liberties Union has filed a brief amicus curiae.
We had occasion to go into this matter in Com. ex rel. Gerchman v. Maroney, 203 Pa.Super. 293, 201 A.2d 319 (1964) (Allocatur refused 204 Pa.Super. xl.), where we held that the Barr-Walker Act was constitutional in spite of the present, and other, objections to it. We said:
However, as has now become the rule rather than the exception, Gerchman took his arguments to the Federal courts. He filed a writ of habeas corpus in the District Court for the Eastern District of Pennsylvania. That Court denied his petition but on appeal the Court of Appeals for the Third Circuit reversed: United States ex rel. Gerchman v. Maroney, 3 Cir., 355 F.2d 302. That Court held that the proceedings under the Barr-Walker Act were criminal rather than civil and that they were a denial of due process because he was not afforded the 'full panoply of the relevant protections which due process guarantees in state criminal proceedings.' It refused to decide whether defendant had a right to a trial by jury upon this issue.
It was as a result of this decision that Judge THOMAS vacated the sentence which he had originally imposed and held a new hearing on July 11, 1966, which attempted to comply with the requirements laid down by the Circuit Court. The defendant insists that this hearing was also a violation of due process but because of reasons hereinafter set forth, we do not have to pass upon that question.
The Gerchman case did not go to the United States Supreme Court but in the meantime another case was proceeding through similar channels in Colorado.
One Francis Eddie Specht was convicted by a jury of the crime of assault on a child under sixteen under C.R.S. '53, 40--2--32, but was sentenced under the Colorado Sex Offenders Act, C.R.S. '53, 39--19--1 et seq., to a term of not less than one day nor more than life. Subsequently he filed a writ of habeas corpus in the District Court of Jefferson County, Colorado, seeking release from custody on the ground that the sentencing court had committed procedural errors and that the Sex Offenders Act was unconstitutional. The District Court refused to issue the writ, which was affirmed by the Supreme Court of Colorado, Specht v. Tinsley, 153 Colo. 235, 385 P.2d 423 (1963), on the ground that habeas corpus was not available to raise the procedural errors raised by the defendant, and that the constitutionality of the Sex Offenders Act had been upheld in Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655.
Specht then petitioned the District Court to vacate, set aside or correct its judgment and sentence. The District Court denied the petition and the Supreme Court of Colorado affirmed: Specht v. People, 156 Colo. 12, 396 P.2d 838 (1964), which again upheld the constitutionality of the Sex Offenders Act.
Specht filed a petition for habeas corpus in United States District Court for the District of Colorado, which also denied relief, and that judgment was affirmed by the United States Court of Appeals for the Tenth Circuit, Specht v. Patterson et al., 357 F.2d 325 (1966), holding that the fact that the Colorado act did not provide for a hearing prior to the exercise of discretion by the court in determining to impose sentence under the Sex Offenders Act in lieu of the sentence authorized for the crime of which he had been convicted, did not render the act unconstitutional. The Court relied on Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, which had held that the Due Process Clause of the Fourteenth Amendment did not require a judge in a murder case to hold a hearing prior to his determination whether to sentence the convicted defendant to death or to life imprisonment. It also quoted from State ex rel. Volden v. Haas, 264 Wis. 127, 58 N.W.2d 577, where that Court had said that the petitioner was
The United States Supreme Court granted certiorari and on April 11, 1967 reversed the Circuit Court: Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326. The Supreme Court reaffirmed the rule of the Williams case supra, but...
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