Com. v. Henderson
| Citation | 433 Pa. 585,253 A.2d 109 |
| Parties | COMMONWEALTH of Pennsylvania v. William J. HENDERSON, Appellant. COMMONWEALTH of Pennsylvania ex rel. William J. HENDERSON, Appellant, v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania, et al. |
| Decision Date | 23 April 1969 |
| Court | United States State Supreme Court of Pennsylvania |
Walter O. Howarth, Pittsburgh, for appellant.
Robert W. Duggan, Dist. Atty., Charles B. Watkins, Asst. Dist. Atty., Pittsburgh, for appellee.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
The procedural matrix of this case is ratner complex. Fortunately, we have been blessed with fine briefs from both parties, simplifying our task. Two appeals from the courts of Allegheny County are here combined, having been consolidated by order of this Court. That at No. 64 March Term, 1969, is a Nunc pro tunc appeal from the order of the Court of Common Pleas dated December 27, 1965, entered by Judge Herman M. Rodgers, Specially Presiding, dismissing, after hearing, appellant's habeas corpus petition. The appeal at No. 48 March Term, 1969, is from the order of the Court of Oyer and Terminer, by President Judge Ellenbogen, dismissing, after hearing, appellant's petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., at amended, 19 P.S. § 1180--1 Et seq.
On December 27, 1955, Carol Smith, appellant's common law spouse, and Rose Smith, Carol Smith's mother, were killed by knife wounds at Carol Smith's home. At the same time, one Bennie Flemming, Rose Smith's common law spouse, sustained a stab wound. The appellant was indicted at No. 263 O. & T. January 1956 for assault with intent to kill Bennie Flemming; at No. 83 O. & T. February 1956 for the murder of Rose Smith; at No. 86 O. & T. February 1956 for the murder of Carol Smith; and at No. 85 O. & T. February 1956 for involuntary manslaughter. On February 8, 1956, appellant, after trial by jury, was convicted of assault with intent to kill upon Bennie Flemming. On June 8, 1956, in the case at No. 86, involving Carol Smith, appellant was convicted by a jury of murder in the first degree. Immediately after the verdict was announced court-appointed counsel for appellant requested that the court impose sentence because appellant did not desire to appeal. Appellant was then given a life sentence in the murder case to take effect at the expiration of the 3 1/2 to 7 years sentence then imposed for the conviction, at No. 263, of assault with intent to kill. Shortly thereafter, on the same day, June 8, 1956, appellant pleaded guilty to the murder of Rose Smith at No. 83, and on the basis of the testimony in the earlier murder trial, was convicted of first degree murder, for which he was given a life sentence to run concurrently with the life sentence imposed at No. 86. The involuntary manslaughter indictment was nolle prossed.
In 1965, appellant filed a petition for a writ of habeas corpus, averring that the confession which was admitted into evidence against him at his murder trials was involuntary. Counsel was appointed. During the course of the three hearings which followed, appellant was permitted to amend his pleadings so as to allege an unknowing guilty plea as well, and he produced testimony on this latter issue also. Judge Rodgers dismissed the petition, holding that the confession was voluntary and that the issue of an unknowing guilty plea was not cognizable in a habeas corpus proceeding where the petitioner was represented by counsel at the time of his plea.
On October 24, 1966, appellant filed a petition under the Post Conviction Hearing Act, alleging that he was denied his right to appeal from his conviction at No. 86; that he was twice placed in jeopardy for the same offense, and that he was denied the effective assistance of counsel in his trial at No. 86. A hearing on that petition was held on May 21, 1968. 1 During the course of that hearing appellant sought to amend his petition to include the allegation of an unknowing guilty plea. Judge Ellenbogen denied the motion on the ground that the issue had been raised in the habeas corpus proceeding, and that the function of the Post Conviction Hearing Act court was not to sit in review of the habeas corpus court. Appellant also moved to amend his pleadings to add that he had been denied counsel in perfecting an appeal from the dismissal of his habeas corpus petition. Judge Ellenbogen noted that appellant had requested an appeal from the order dismissing his habeas corpus petition, and that on February 24, 1966, he (Judge Ellenbogen) had sent appellant's court-appointed counsel a letter directing him to take an appeal on behalf of appellant. This letter was apparently misunderstood by counsel. Judge Ellenbogen then directed petitioner's counsel to seek leave from the appropriate appellate court to file an appeal Nunc pro tunc from the habeas corpus dismissal. This was done, and on October 30, 1968, we granted appellant leave to appeal Nunc pro tunc.
On the original allegations of the Post Conviction Hearing Act petition, the court below held that they were waived by not being raised in the habeas corpus proceeding. In addition, he held that even had they not been waived, appellant was not denied his right to appeal, but rather waived it knowingly, and that he was not denied the effective assistance of counsel.
Appellant then appealed from the order dismissing his Post Conviction Hearing Act petition; that appeal was consolidated with the Nunc pro tunc appeal we allowed from the order dismissing the habeas corpus petition.
Appellant basically raises five issues here: 1) The Post Conviction Hearing Act court erred in refusing to find that he was denied the right to appeal from his murder conviction at No. 86; 2) it erred in refusing to find that he was placed in double jeopardy because he was compelled to stand trial for murder twice for two killings arising out of the same incident; 3) it erred in refusing to find that he was denied the effective assistance of counsel in his trial at No. 86 because counsel had no reasonable basis for a) not appealing, b) not objecting to the photographs admitted, and c) not introducing evidence and a proposed charge on the effect of intoxication; 4) the habeas corpus court erred in finding his confession to be voluntary; and 5) both courts erred with regard to the issue of the unknowing guilty plea, the Post Conviction Hearing Act court in dismissing the motion to amend in order to consider it, and the habeas corpus court in holding that it was not a cognizable claim where the defendant was represented by counsel at his plea.
We need not reach the merits of appellant's first three claims, alleging errors in the Post Conviction Hearing Act court, because we agree with the Post Conviction Hearing Act court that these issues have been waived. § 4(b)(1) of the Post Conviction Hearing Act provides that an issue is waived if 'The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, In a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act.' (Emphasis added). As we have just repeated in Commonwealth v. Johnson, Pa., 252 A.2d 641 (1969), 'where, as here, appellant was represented by an attorney in * * * his previous * * * habeas corpus petition, in the absence of proof of extraordinary circumstances, see section 4(b)(2), such a waiver is considered binding, Commonwealth ex rel. Linde v. Maroney, 432 Pa. 324, 248 A.2d 235 (1968); Commonwealth v. Black, 433 Pa. 150, 249 A.2d 561 (1969); Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968); Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968).' See also Commonwealth v. Adams, 212 Pa.Super. 150, 239 A.2d 851 (1968) and Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967). Here, as in Johnson, there is no allegation of special or extraordinary circumstances, and thus the waiver must be considered binding.
We turn next to the holding of the habeas corpus court that the confession was voluntary. We note initially that the habeas corpus court improperly placed the burden of production on appellant. Com. ex. rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). However, we indicated in Butler that this improper allocation is rarely harmful, particularly where the issue of voluntariness has been litigated at trial. We can see no possible prejudice resulting to appellant in this case.
The question of credibility having been resolved against appellant by the habeas corpus court, our task on review is merely to determine whether the finding of voluntariness is supported by 'the testimony of the prosecution's witnesses and the uncontradicted testimony of appellant.' Com. ex. rel. Joyner v. Brierley, 429 Pa. 156, 158, 239 A.2d 434, 435 (1968); see also Com. ex rel. Butler v. Rundle, supra, and Culombe v. Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). With that standard in mind, it is apparent that the finding of voluntariness must be sustained. The involuntariness claim is based largely on a brain injury allegedly sustained by appellant when he was captured by the police. He also asserts that the questions posed by his interrogators were not explained to him, that there were five policemen with him in a small room, and that he was not advised of his constitutional rights. Further, he claims that he was poorly educated and intoxicated. Under the totality of the circumstances, appellant asserts, his confession was involuntary. We do not agree. The...
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Com. v. Motley
...513, 518--20 (1963); Culombe v. Connecticut, 367 U.S. at 610, 81 S.Ct. at 1883 (opinion of Frankfurther, J.); Commonwealth v. Henderson, 433 Pa. 585, 592, 253 A.2d 109, 113, cert. denied, 396 U.S. 936, 90 S.Ct. 281, 24 L.Ed.2d 236 (1969); Commonwealth v. Walker, 433 Pa. 124, 127--28, 249 A.......