Original jurisdiction, No. 302, Miscellaneous Docket No. 9. Petition for writ of habeas corpus, in case of Commonwealth of Pennsylvania ex rel. James Smith v. Stanley P. Ashe, Warden, Western State Penitentiary et al. Petition refused; reargument refused February 9, 1950.
Thomas D. McBride, with him Herbert S. Levin, for relator.
T. McKeen Chidsey, Attorney General, with him Randolph C. Ryder, Deputy Attorney General, Colbert C. McClain and James W. Tracey, Jr., Assistant District Attorneys, for respondents.
Before Maxey, C.j., Stern, Stearne and Jones, JJ.
OPINION BY MR. CHIEF JUSTICE MAXEY
A petition for writ of habeas corpus is now filed by James Smith, who on his own plea of guilty was adjudged guilty of murder in the first degree, and sentenced to death. This judgment and sentence were on June 24, 1949, affirmed by the Court (362 Pa. 222, 66 A.2d 764). The core of the petition is that Smith was permitted to plead guilty without having the question of his sanity formally adjudicated and that psychiatrists were not supplied him by the State as witnesses. The petition contends that due process of law required this because in June 1945 Smith had been committed as "insane" to a mental institution in Brooklyn, N.Y., even though on October 11, 1945, he was officially discharged from that institution as "recovered, sane, and capable of understanding".
The petition alleges that counsel endeavored to obtain a psychiatric examination of the relator, but without success, and that they were "unable to competently
determine whether Relator was either insane at the time the offense was committed, or sane, able to comprehend the charges against him, and able to cooperate in his defense... Without expert testimony, Relator [claims that he] could not have overcome the presumption of sanity and capacity to stand trial and could not have sustained his plea of 'not guilty', if such a plea had been based on his insanity at the time of the offense". It is further stated that the relator's counsel in a conference with Judge GUERIN and with Assistant District Attorney McClain agreed that the plea of "not guilty" be changed to "guilty", that the Commonwealth would present its testimony before the court en banc, and that the case be then postponed sufficiently to allow counsel to subpoena the New York records of Smith's mental condition and that if these records raised doubt of relator's sanity, the court would consider the withdrawal of the plea of "guilty".
The plea of "guilty" was entered on September 21, 1948, and on the same day the Commonwealth presented its evidence as to the crime. The petition then says: "On the same day, September 21, 1948, the court adjudged Relator guilty of Murder of the first degree without having received in evidence and without having considered the records as to or the question of Relator's sanity, his capacity to plead Not Guilty, change his plea to Guilty, participate in the hearing, cooperate with counsel, and make his defense.*fn1 On October 28, 1948, and November 5, 1948, the court heard further testimony on the issue of penalty only. Although the testimony raised a doubt as the Relator's sanity and mental capacity to plead and stand trial, or participate in the hearing,
cooperate with counsel and make his defense, the guilty plea was not permitted to be withdrawn."*fn2
On February 4, 1949, Smith was formally sentenced to death by electrocution. He appealed to this Court and the sole question raised was: "Did the Court below abuse its discretion in imposing the death penalty after appellant's plea of guilty, in view of appellant's background and mental history?"
In their brief on that appeal counsel said: "We advised the trial court of our concern 'whether the plea of guilty was proper, since (we) had no means of obtaining a psychiatric examination' before entering the plea.... Unadvised by psychiatrists, we could not 'properly cross-examine Dr. Drayton*fn3 or prepare or present the defense, either in establishing insanity as a complete defense or in mitigation of the penalty.' The defendant did not receive 'adequate representation, for our hands were tied, our tongues muted and our minds unenlightened.'"
The petition sets forth the denial of clemency by the Board of Pardons*fn4 on September 21, 1949, the fixing of the date of execution, and that on September 24, 1949, habeas corpus proceedings were instituted before the United States District Court for the Eastern District of
Pennsylvania.*fn5 In the proceedings in the District Court there was testimony by the relator's counsel, by the three judges of the Court of Oyer and Terminer of Philadelphia County and by Dr. Baldi, Superintendent of the Philadelphia County Prison.
In that hearing these facts were brought out: The case was listed for trial before Judge SLOANE on March 17, 1948, but was postponed on defendant's counsel's statement that he had not been able to secure the desired medical evidence from New York. Counsel*fn6 then suggested the appointment of a commission under Section 308 of The Mental Health Act of 1923, Act of July 11, 1923, P.L. 998, as amended, 50 PS Sec. 48,*fn7 to examine the relator.
Judge SLOANE called counsel's attention to the case of Commonwealth v. Dunn, 47 D. & C. 685, which ruled that under this statute only officers in charge of the institution where the prisoner is being detained are proper petitioners. Judge SLOANE also informed counsel that he would consult with Dr. Frederick S. Baldi, physician at the Philadelphia County Prison, concerning possible institutional proceedings under this Act. He did this and Dr. Baldi expressed the opinion
that the relator was not insane and he refused to request the appointment of a commission to investigate the relator's insanity.
On March 19, 1948, a petition was presented to Judge FLOOD for the appointment of a commission to inquire into the relator's mental condition. The petition was dismissed for the reason that the petitioner was not a proper party.
The indictment was then listed for trial on April 20, 1948, before Judge KUN. Having been unable to secure the desired evidence from the mental institution in the State of New York, Mr. Levin prepared a petition for leave to withdraw his appearance, which was allowed on April 15, 1948. Judge KUN then appointed Mr. Levin and Harry S. Berkowitz as counsel, appointment being made under the Act of March 22, 1907, P.L. 31, sec. 1, 19 PS 784. The trial was continued to May 24, 1948, at which time it was listed for trial before Judge LEWIS. It was again continued because counsel had not been able to secure the evidence from New York State. It was then listed for trial before Judge MAWHINNEY and again continued, and next listed for trial on September 21, 1948, before Judge GUERIN.
About two weeks prior to September 21, 1948, Judge GUERIN conferred with relator's counsel about this case and, in accordance with Judge GUERIN's testimony, relator's counsel "presented a situation indicating we could not go on with the trial of the case without the advantage of testimony from the hospital records in Brooklyn and in New York" and that it was represented by counsel that they had been refused these records and that it would be necessary for them to resort to a petition under the Uniform Subpoena Act, and then procure a proper order in the New York Court, which would require six or seven weeks. Judge GUERIN then agreed to permit the "case to be called and not follow
the usual custom, but continue its trial until its termination and... [he] would permit the Commonwealth to introduce its evidence and... then set a day after allowance of the petition at which time the records could be brought from New York". Relator's counsel then informed him that "they would enter a plea of guilty generally, and request... [him] to obtain two fellow Judges to sit with... [him] and hear the trial on the plea of guilty generally". Pursuant to this arrangement, Judge GUERIN called in CARROLL and SLOANE, JJ., to sit with him as a court en banc. Relator's counsel made no request either at the pre-trial conference or at any other time for the appointment of a psychiatrist to assist them in the preparation and presentation of the cause. After the matter was fully explained t the relator by his counsel, and his consent to the proposed course given, on September 21, 1948, the former plea of not guilty was withdrawn and a plea of guilty generally, entered, the Commonwealth put in its evidence, a petition to secure the desired records from the mental institutions in the State of New York was presented and granted, and the case continued until October 27, and then to October 28, 1948, at which time the relator introduced the testimony of Dr. Fred Adams, a psychiatrist connected with the Kings County Hospital, Kings County, New York, who had, in June of 1945, together with a psychiatrist and psychologist of that institution, at the request of the County Court of Brooklyn, New York, examined the relator, diagnosed his mental condition as "psychosis, schizophrenia, hebephrenic type" a "mental disturbance characterized usually by illusions, hallucinations referable to the idea of persecution or grandeur", concluded that he was then "insane, not imbecile, and... [was] not capable of understanding the charge against him, the proceedings against him and of making his defense", and recommended that he "be
committed to a hospital for the insane such as Brooklyn State Hospital, for the treatment of his mental condition".
Dr. Clarence H. Bellinger, Senior Medical Director, of the Brooklyn State Hospital, Brooklyn, New York, testified that the relator was admitted to that institution on June 19, 1945, was examined by a psychiatrist and the diagnosis of the Kings County Hospital substantially confirmed except that the psychosis was concluded to be "catatonic" rather than "hebephrenic"; that the relator improved while at that institution, and, as a result of an examination by the witness on October 9, 1945, was released to the New York City authorities on October 11, 1945, "as having recovered from any mental illnesses which he had. He was clear and lucid."
Relator's counsel then told the court that, in view of the evidence adduced, the relator was "entitled to have some psychiatrist examine him". The court acquiesced in this and the proceeding was adjourned to November 5, 1948. At the request of the court Dr. William Drayton, Jr., Chief of the Neuro-psychiatric Department of the Philadelphia General Hospital, examined the relator, after having read the prior testimony, including the records from the Brooklyn State Hospital, which had already been placed in evidence. Dr. Drayton's diagnosis was that the relator "is of average intelligence, no psychosis, psychotically and neurologically negative" and he "was not only sane ...