Com. v. Littlejohn

• Decision Date: 24 January 1969
• Citation: 250 A.2d 811,433 Pa. 336
• Parties: COMMONWEALTH of Pennsylvania v. John LITTLEJOHN, Appellant. COMMONWEALTH of Pennsylvania v. Leonard ARCHAMBAULT, Appellant.
• Court: Pennsylvania Supreme Court

Page 811

250 A.2d 811

433 Pa. 336

COMMONWEALTH of Pennsylvania v. John LITTLEJOHN, Appellant.

COMMONWEALTH of Pennsylvania v. Leonard ARCHAMBAULT, Appellant.

Supreme Court of Pennsylvania.

Jan. 24, 1969.

Rehearing Denied March 21, 1969.

Leonard M. Sagot (Submitted) Philadelphia, for John littlejohn.

[433 Pa. 340] Arlen Specter, Dist. Atty., James D. Crawford, Chief, Appeals Div., Asst. Dist. Atty., Benjamin H. Levintow, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

[433 Pa. 339] Herman I. Pollock, Defender, John W. Packel, Asst. Defender, Philadelphia, Melvin Dildine, Chief, Appeals Div., for appellant.

Roger F. Cox, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

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

OPINION OF THE COURT

ROBERTS, Justice.

Because both of these cases squarely present the same issue for our determination. we have consolidated them for the purpose of opinion. In No. 445, appellant Leonard Archambault, who is serving a life sentence following a conviction for first degree murder, filed a petition under the Post Conviction Hearing Act alleging that he did not knowingly and intelligently waive his right to a direct appeal. A hearing was held at which appellant's trial counsel testified that he remembered appellant's trial, that he had told appellant there was no possibility of securing relief through appeal, and that he warned appellant of the possibility of receiving the death penalty, rather than his present sentence of life imprisonment, should he be granted a new trial. The hearing judge chose to believe this account, notwithstanding appellant's contrary recollection, and found that appellant had knowingly and voluntarily waived his right of appeal.

In No. 372, John Littlejohn, appellant, who was also convicted of first degree murder and is currently serving a life sentence, sought relief through the Post Conviction Hearing Act. He alleged that his withdrawal of a motion for a new trial (an essential prelude to an appeal) was involuntary because trial counsel told him (at the suggestion of the trial judge) that if he were successful in obtaining a new trial the district attorney would '* * * be free to ask the same penalty he did previously * * * the sentence of death in the event of your conviction.' The court below, after a full hearing, dismissed the petition, on the ground that the failure to make a motion for a new trial was voluntary.

Both of these cases thus involve a failure to follow some post conviction procedure because of an alleged fear of receiving the death sentence if successful in obtaining a new trial. In order to determine whether there is merit in this contention, it is necessary for us to decide if it is lawful for a defendant to be placed in such jeopardy of a death sentence in a second trial, once he has been found guilty of murder in the first degree and sentenced to life imprisonment. ¹ Having carefully considered this difficult problem, it is our view that three constitutional provisions preclude the Commonwealth from seeking the death penalty under such circumstances.

DUE PROCESS

All are agreed that appellants, having been convicted of murder, had an absolute right of appeal to this Court. Act of February 15, 1870, P.L. 15, § 1, 19 P.S. § 1186. However, the Commonwealth argues that it is perfectly proper to establish as a condition to exercising that right, the implied agreement to waive all possible advantages which are part of the first conviction. But it does not require an especially vivid imagination to appreciate the unfortunate posture in which defendants are placed by this condition. The prisoner must decide whether to abandon his constitutional right to a fair trial and serve out his prison term under an invalid or unchallenged sentence, or exercise his statutory right to appeal in order to achieve his constitutional right to a fair trial, at the risk that his second trial might result in the imposition of the death penalty. This makes the price of an appeal from an erroneous judgment in a first degree murder case the risk of a man's life. 'The law should not, and in our judgment does not, place the defendant in such an incredible dilemma.' Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). This choice can truly be said to be 'grisly.' Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). 'Such a price, in our judgment, is a hardship so acute and so shocking that our public policy cannot tolerate it.' State v. Wolf, 46 N.J. 301, 216 A.2d 586, 590, 12 A.L.R.3d 970 (1966). See Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967).

Further, we think that this choice not only shocks the conscience and offends our sense of justice, but also rises to an unconstitutional condition. In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Supreme Court of the United States held invalid a provision in the Federal Kidnapping Act which provided: if a defendant chose to be tried by a jury he was subject to the death penalty; if he waived his right to a jury trial he gained immunity from the death sentence. The Court held that 'whatever may be said of Congress' objectives (in passing such a provision), they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights.' The Supreme Court explained that '(t)he inevitable effect of any such provision, is of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.'

This language in our judgment virtually compels an immunity from jeopardy of the death penalty for appellants in these cases. Here, the price exacted for the appellants' attempt to ensure their constitutional right to a fair trial and their statutory right to appeal was the risk that on the second trial they would receive the death penalty. Thus appellants were presented with the same choice as were the defendants under the Federal Kidnapping Act. If either group chose to exercise its constitutional right (to secure a fair trial or a jury trial) the penalty was the added risk that the procedure might result in the death penalty. Therefore we believe it is clear that the risk of the death penalty is an unconstitutional condition to the right of appeal; unless the Commonwealth is able to advance a legitimate 'purpose or effect,' United States v. Jackson, supra, for the privilege of asking for the death penalty on retrial, such a course of action must be prohibited. See Comment, Another Look at Unconstitutional Conditions, 117 U.Pa.L.Rev. 144 (1968); ABA Standards, Sentencing Alternatives and Procedures § 3.8 (Tent. Draft Dec. 1967); Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv.L.Rev. 1595 (1960).

However, no rationale has been advanced by the Commonwealth here which would justify the imposition of the death penalty in a 'manner that needlessly penalizes the assertion of a constitutional right.' United States v. Jackson, 390 U.S. at 583, 88 S.Ct. at 1217. The only possible reasons the Commonwealth might want the power to impose the death penalty are (1) because the first sentence was too lenient or (2) the desire to deter the number of appeals from first degree life imprisonment convictions. The former reason is constitutionally impermissible as a violation of the equal protection clause of the fourteenth amendment. See discussion p. 815 infra. The latter is equally constitutionally infirm. If the Commonwealth is concerned, as it should be, with minimizing the number of frivolous and unmeritorious appeals, there must be a more rational method of determining those which are unwarranted. To accomplish the goal of determining appeals through fear of the death penalty merely adds another risk to the choice to bring Any appeal, whether frivolous or not. Pragmatic objectives--no matter how well motivated--which produce injustices as here, may not prevail when they violate constitutional standards of fairness.

Nor would we hear the Commonwealth contend that meritorious appeals should be discouraged because of the additional stress which the appeal procedure places on the judicial process. First it is doubtful that the number of appeals from first degree murder convictions constitutes a heavy burden. Second, once the right of appeal is granted, appellate review should be allowed in a manner which in no way discriminates against those who face the possibility of a death sentence if their appeal is successful. Cf. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Finally, the comment of the ABA Advisory Committee on this issue deserves emphasis here: 'The risk of a greater sentence as the result of the assertion of the right of review necessarily acts as a deterrent to the exercise of the right * * *. The extent of the pressure placed on the defendant bears no relation to the degree of injustice which may have been perpetrated (at trial). A system which fears the assertion of error to the degree that it must place artificial deterrents in the path which leads to review is not a healthy system.' ABA Standards, Sentencing Alternatives and Procedures § 3.8 at 199.

EQUAL PROTECTION

It is our view that the equal protection clause of the fourteenth amendment also prohibits the Commonwealth from imposing the threat of the death penalty on those who have been convicted of first degree murder and sentenced to life imprisonment. It is definitely not permissible to take a small group from the class of All those who have been sentenced...