Commonwealth ex rel. Gryger v. Burke
| Decision Date | 14 July 1953 |
| Parties | COMMONWEALTH ex rel. GRYGER v. BURKE, Warden. Appeal of COMMONWEALTH. |
| Court | Pennsylvania Superior Court |
Petition for writ of habeas corpus. The Court of Common Pleas No. 7 of Philadelphia County, at No. 1775, September Term, 1951 entered an order granting writ of habeas corpus and setting aside the sentence of life imprisonment imposed upon relator as an habitual criminal, and the Attorney General, on behalf of the Commonwealth, appealed. The Superior Court, No. 54 October Term, 1953, Rhodes, P. J., held that evidence and statement of trial judge that life sentence was required by habitual criminal act did not justify holding that trial judge misinterpreted habitual criminal act in sentencing petitioner to life imprisonment, and that trial judge assumed the sentencing provision of act to be mandatory rather than discretary.
Order reversed and writ dismissed.
A relator was not entitled to relief sought by petition for writ of habeas corpus where petition was repetitious of previous petitions and consisted of averments which had been adjudicated by Supreme Court of United States.
Randolph C. Ryder, Dep. Atty. Gen., Frank P Lawley, Jr., Asst. Dep. Atty. Gen., and Robert E. Woodside, Atty. Gen., for appellant.
Miles Warner, Asst. Voluntary Defender and Herman I. Pollock Voluntary Defender, Philadelphia, for appellee.
Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, GUNTHER and WRIGHT, JJ.
This is an appeal by the Attorney General on behalf of the Commonwealth of Pennsylvania from an order of the Court of Common Pleas No. 7 of Philadelphia County granting a writ of habeas corpus and setting aside the sentence of life imprisonment imposed upon relator, Francis Joseph Gryger, on November 27, 1944, by the Court of Oyer and Terminer of Philadelphia County (No. 461, June Sessions, 1943), as a habitual criminal under section 1108 of The Penal Code, Act of June 24, 1939, P.L. 872, 18 P.S. § 5108.
No appeal was taken from this judgment of sentence, and the present habeas corpus proceeding is the last of a series instituted by relator before various tribunals, including this Court, a United States District Court, and the Supreme Court of this Commonwealth. The judgment of the latter refusing relief was affirmed by the Supreme Court of the United States in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683,rehearing denied 335 U.S. 837, 69 S.Ct. 13, 93 L.Ed. 389.
The present proceeding arises from relator's petition for a writ of habeas corpus filed in the Court of Common Pleas of Philadelphia County on October 9, 1951. The District Attorney of Philadelphia County filed an answer in which it was averred that the questions raised by relator in his petition had been passed upon and decided by the Supreme Court of the United States. After hearing, Judge Levinthal, of the Court of Common Pleas No. 7, by opinion dismissed the petition on December 4, 1951. Thereafter, however, relator presented a petition for rehearing. The District Attorney of Philadelphia County (successor of the District Attorney who filed the answer to relator's petition) in his answer to the petition for rehearing, although recognizing the decision of the Supreme Court of the United States in Gryger v. Burke, supra, as probably conclusive against relator, did not oppose the granting of a writ of habeas corpus upon proper proofs being made by relator.
On February 6, 1952, relator's petition for rehearing was allowed, and on May 29, 1952, the Court of Common Pleas No. 7, in an opinion by Judge Levinthal, granted a writ of habeas corpus and ordered the sentence of life imprisonment imposed upon relator set aside.
Prior to such order, the Attorney General had caused his appearance to be entered on March 29, 1952, in the court below, and on August 26, 1952, appealed to our Supreme Court which, on December 5, 1952, remitted the record to this Court, the jurisdiction of such an appeal being in the Superior Court.
Relator has moved to quash the appeal on the ground that the Attorney General is without legal authority or power to supersede the District Attorney in the present proceeding. The Attorney General has replied. The motion to quash is denied. The Attorney General is the chief law officer of the Commonwealth, and his authority is co-extensive with the public legal affairs thereof. In taking this appeal the Attorney General acted within his power and authority. This clearly appears by reference to the pertinent statutes and relevant decisions of the Supreme Court of this Commonwealth.
Section 903 of the Administrative Code, Act of April 9, 1929, P.L. 177, Art. IX, 71 P.S. § 293, provides that:
‘ The Department of Justice shall have the power, and its duty shall be: * * *
‘ (b) To represent the Commonwealth, or any department, board, commission, or officer thereof, in any litigation to which the Commonwealth or such department, board, commission, or officer, may be a party, or in which the Commonwealth or such department, board, commission, or officer, is permitted or required by law to intervene or interplead.’
The Act of May 28, 1915, P.L. 616, § 1, as amended by the Act of July 7, 1919, P.L. 731, § 1, 12 P.S. § 145, provides:
‘ In all cases at law or in equity, in any court or before any officer, board, commission, or other body having jurisdiction of the matter, in which the Commonwealth or any officer thereof may be a party, or in which the Commonwealth may have any interest, the Commonwealth shall have the right to intervene, and to appear, plead, prosecute, defend, or appeal, as other parties litigant; * * *.’
In Com. ex rel. Minerd v. Margiotti, 325 Pa. 17, 30, 188 A. 524, 530, our Supreme Court stated: ‘ We conclude * * * that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth's behalf, and, in any and all these activities to supersede and set aside the district attorney when in the Attorney General's judgment such action may be necessary.’ The court also stated, page 33 of 325 Pa.,page 531 of 188 A.:‘ We agree with what was said in State ex rel. [Young] v. Robinson, supra [101 Minn. 277, 112 N.W. 269, 20 L.R.A.N.S., 1127], ‘ We have numerous instances where particular duties are expressly imposed upon the county attorney, yet it is clear that the Attorney General has the right, in virtue of his office, to co-operate with or act independently of that official in all cases where the public interests justify it.’ ' See, also, Margiotti Appeal, 365 Pa. 330, 75 A.2d 465; Com. ex rel. Margiotti v. Orsini, 368 Pa. 259, 81 A.2d 891; Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892; In re Grand Jury Investigation of Conditions at the Western State Penitentiary, 173 Pa.Super. 197, 96 A.2d 189; Com. ex rel. Kunkle v. Claudy, 171 Pa.Super. 557, 91 A.2d 382.
The action of the Attorney General may be considered as intervention in a civil case rather than supersession or displacing a district attorney in a criminal proceeding. Such intervention, in a matter of general public importance relating to the place and good order of the Commonwealth, is clearly within the scope of the authorized and recognized power of the Attorney General. Procedural uniformity in habeas corpus proceedings and finality of judgment in this class of litigation can better be attained by an intervention of the Attorney General in the public interest.
We are of the opinion that the basic question (whether the failure to provide relator with the assistance of counsel at the fourth-offender proceeding constituted a denial of due process) has been determined previously and conclusively adjudicated by the Supreme Court of the United States, and that a court of common pleas may not review the judgment of that court in the absence of proper authorization from a superior tribunal.
We shall recite the relevant facts: As to the first three convictions upon which the fourth-offender proceeding was based, no consequential question is raised. The fourth conviction was on bill No. 461, June Sessions, 1943, in the Court of Oyer and Terminer or Court of Quarter Sessions of Philadelphia County, charging burglary. Relator had been indicted on June 23, 1943, on this bill and also on bill No. 462, June Sessions, 1943, charging aggravated assault and battery arising out of the same incident. On June 28, 1943, he pleaded not guilty to these indictments. With those two indictments pending he was further indicted on July 21, 1943, upon twelve bills, Nos. 251-262, July Sessions, 1943, each charging burglary and receiving stolen goods. On July 26, 1943, he pleaded guilty to the second count, receiving stolen goods, in each of the last mentioned twelve bills. He was represented by counsel at the time. The court thereupon imposed consecutive sentences to the Eastern State Penitentiary of not less than 2 1/2 years nor more than 5 years on bills Nos. 251 and 252. No sentence was imposed on any of the other bills.
Following an unsuccessful attempt to escape from prison, for which he was sentenced, relator was brought to trial on bills Nos. 461 and 462, June Sessions, 1943, on February 25, 1944. After trial, at which he was also represented by counsel, relator was convicted on both bills and was sentenced on bill No. 461 to a term of not less than 5 years nor more than 10 years in the Eastern State Penitentiary to be computed from the expiration of certain unexpired sentences.
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