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April 14, 1953


Appeal, No. 95, Jan. T., 1953, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1952, No. 4124, in case of Commonwealth of Pennsylvania ex rel. Theodore Elliott v. Dr. Frederick S. Baldi, Superintendent, Philadelphia County Prison and J. W. Claudy, Warden, Western State Penitentiary. Order affirmed.


Barnie F. Winkelman, with him William R. Pomerantz, for appellant.

Michael von Moschzisker, First Assistant District Attorney, with him Samuel Dash, Assistant District Attorney and Richardson Dilworth, District Attorney, for Superintendent, Philadelphia County Prison, appellee.

Randolph C. Ryder, Deputy Attorney General, with him Frank P. Lawley, Jr., Assistant Deputy Attorney General and Robert E. Woodside, Attorney General, for Warden, Western State Penitentiary, intervening appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 373 Pa. Page 490]


It will aid in a proper understanding and determination of this appeal if we briefly review some of the facts and some of the issues which are fully set forth in our opinion in Commonwealth v. Elliott, 371 Pa. 70, 89 A.2d 782.

Elliott ruthlessly shot and killed a policeman during a robbery. He pleaded guilty to murder and a three Judge court found him guilty of murder in the first degree. Elliott's counsel, whose industry and zeal in his behalf have been remarkable, obtained the appointment (by the trial Court) of Dr. Drayton, a psychiatrist, and presented to that Court Elliott's history and background from a very early age. Elliott and his counsel have continuously, consistently and unqualifiedly admitted that the killing was first degree murder and that he (Elliott) was and is sane, but allege that he was and is an irresponsible moron or mental defective and consequently should have been sentenced to life imprisonment instead of death.

[ 373 Pa. Page 491]

After a careful study of all the evidence, including Elliott's history from his early youth, the Court below, in a very able and persuasive opinion, imposed the death sentence. Thereafter Elliott's counsel discovered that Dr. Drayton, the court-appointed psychiatrist, had himself been committed as of January 12, 1952, because of an incurable mental disease which was progressive and which had deprived him of any judgment or insight. The commitment proceedings had been brought by Dr. Drayton's wife on or about September 18, 1951. These facts were contained in an affidavit by Thomas D. McBride, Esq., which was filed in U.S. ex rel. Smith v. Baldi, 344 U.S. 561.

At the oral argument of Elliott's appeal before this Court in the prior case of Commonwealth v. Elliott, permission to file the McBride affidavit was requested and granted. Dr. Drayton's reports of his examination of Elliott in 1938 and also on July 3, 1950, stated that defendant was a middle grade moron and a mental defective who was, however, a shrewd fabricator. The case was unusual in that all of the psychiatric and similar history with respect to the mental condition of the defendant from the time he was 10 years old are in substantial and practically unanimous agreement, viz., that the defendant was an aggressive, unstable, dangerous moron who was mentally defective. The important fact to note and remember throughout the present case is that experts and laymen all agree (1) that defendant was sane, and (2) that he was a moron and mentally defective. We decided that this was a factor to be taken into consideration in determining and fixing a sentence, but did not require the imposition of a life sentence instead of death.

In that case we very carefully considered all points raised by the defendant -- including the aforesaid affidavit

[ 373 Pa. Page 492]

    of McBride,*fn1 -- and decided there had been no abuse of discretion in fixing the sentence of death, and affirmed the judgment and sentence of the lower Court: Commonwealth v. Elliott, 371 Pa., supra.

Because the point now raised was orally argued and carefully considered by us in the former appeal, we could summarily dismiss the present appeal. However, in view of the fact that a man's life is at stake and in view of the very recent decision of the Supreme Court of the United States in U.S. ex rel. Smith v. Baldi, 344 U.S. 561, supra, and in further view of the novel and important questions herein raised, we shall consider the case on its merits.

Elliott's petition for a writ of habeas corpus and rule to show cause in the instant case is based upon McBride's aforesaid affidavit pertaining to the incompetence of Dr. Drayton, which was unknown to the sentencing Court. The petition averred that this incompetence, which was discovered 10 months after Dr. Drayton's last report on Elliott, "constituted a defect or irregularity in the criminal proceedings"; with, we assume, the implication that it amounted to a denial of due process. Relator specifically contends that because of Dr. Drayton's mental condition in September 1951 and January 1952, his opinion of the defendant in July 1950 was worthless, and the sentencing Court was erroneously guided by this worthless opinion and consequently came to an unjust conclusion. The lower Court through one of the sentencing Judges who was thoroughly familiar with Elliott's case, summarily dismissed the present petition and rule for habeas corpus without requiring an answer or a hearing.

The first contention of the Commonwealth is that this question cannot be raised by a habeas corpus addressed

[ 373 Pa. Page 493]

    to the lower or sentencing Court. The cases are legion in which this Court has said that a writ of habeas corpus is not a substitute for an appeal or for a writ of error or for a motion for a new trial or for the correction of trial errors: Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 75 A.2d 593; Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 71 A.2d 107; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1. On the other hand, the recent tendency of Courts, especially the Supreme Court of the United States, has been to relax this general rule and to widen the scope of due process and allow a writ of habeas corpus when the interests of justice imperatively require it. See particularly Townsend v. Burke, Warden, 334 U.S. 736 and the recent United States Supreme Court cases of U.S. ex rel. Smith v. Baldi, 344 U.S. 561; Brown v. Allen, Warden, 344 U.S. 443; Speller v. Allen, Warden, 344 U.S. 443; and Daniels v. Allen, Warden, 344 U.S. 443.

It must be obvious, as well as just, that petitioner should have some redress if he was sentenced under either a mistake of law or a mistake of important material facts which were discovered after sentence and could not by reasonable diligence have been discovered before sentence. His only possible remedy under such facts is either a writ of habeas corpus or a writ of coram nobis.*fn2 Habeas corpus lies to correct void or illegal sentences or an illegal detention: Com. ex rel. Milewski v. Ashe, 362 Pa. 48, 66 A.2d 281; Com. v. Ketner, 92 Pa. 372; Com. v. Morgan, 278 Pa. 395, 123 A. 337; Com. v. Curry, 285 Pa. 289, 132 A. 370; Com. ex rel. Di Giacomo v. Heston, 292 Pa. 63, 140 A. 533; Halderman's Petition, 276 Pa. 1, 119 A. 735; Com. ex rel. Stanton v. Francies, 250 Pa. 350,

[ 373 Pa. Page 49495]

A. 798; Com. ex rel. v. Smith, 324 Pa. 73, 187 A. 387; and where the record shows a trial or sentence or plea which was so fundamentally unfair as to amount to a denial of due process or other constitutional rights of the accused, habeas corpus will lie: Palmer v. Ashe, Warden, 342 U.S. 134; Townsend v. Burke, 334 U.S., supra; Waley v. Johnston, 316 U.S. 101; Smith v. O'Grady, 312 U.S. 329; Mooney v. Holohan, 294 U.S. 103; Moore v. Dempsey, 261 U.S. 86; Bram v. U.S., 168 U.S. 532, 543; Chambers v. Florida, 309 U.S. 227; Com. ex rel. Sheeler v. Burke, 367 Pa. 152, 79 A.2d 654.*fn3

In the light of these decisions,*fn4 we hold that habeas corpus will lie, if the Court has imposed a sentence on the basis of facts or assumptions concerning defendant's criminal or psychiatric or psychological record which were materially untrue and which cannot be justified upon the record and which defendant had no reasonable means or opportunity to call to the Court's attention. As will hereinafter more fully appear, there are no facts of record which entitle petitioner to a hearing or to a review or change of his sentence.

The next important contention is that of the Relator who contends that the Court below had no right to dismiss or deny the petition for a writ of habeas corpus without a hearing. There is no merit in this contention. Where the petition or application itself, or where the record upon which it is based, or both together, fail to clearly make out a case entitling a relator

[ 373 Pa. Page 495]

    to the relief afforded by habeas corpus, a hearing is not necessary.*fn5 Cf. Com. ex rel. Milewski v. Ashe, 362 Pa., supra; Com. ex rel. Chambers v. Claudy, 171 Pa. Superior Ct. 115, 90 A.2d 383; Com. ex rel. Rogers v. Claudy, 170 Pa. Superior Ct. 639, 90 A.2d 382; Com. ex rel. De Poe v. Ashe, 167 Pa. Superior Ct. 23, 74 A.2d 767; Act of May 25, 1951, P.L. 415, ยง 4, 12 PS 1904.

The recent case of U.S. ex rel. Smith v. Baldi, 344 U.S. 561, supra, lends no support to relator's main contention that this Court or the sentencing Court should reopen his case and reduce the sentence from death to life imprisonment because of that Court's reliance upon the report of Dr. Drayton who ten months later became mentally incapacitated. In the Smith case defendant relied, as does this defendant, upon Dr. Drayton's alleged incapacity. In that case Dr. Drayton testified on September 21, 1948, that Smith was sane at the time he committed the murder in January 1948. On October 28th and November 5, 1948, defense counsel introduced evidence tending to show that Smith was insane. After a consideration of all the evidence the sentencing Court on February 4, 1949, sentenced Smith to death. The conviction and sentence were affirmed by this Court in Com. v. Smith, 362 Pa. 222, 66 A.2d 764. Thereafter Smith filed several (successive) petitions for a writ of habeas corpus in the United States District Court, one of which was recently heard and decided by the Supreme Court of the United States. Smith alleged he was denied due process because the Commonwealth of Pennsylvania should first have formally adjudicated the question of his mental competency

[ 373 Pa. Page 496]

    before allowing him to plead guilty; and secondly, he should have been afforded the technical services of a psychiatrist before pleading at all to a capital offense; and thirdly, the incompetence of Dr. Drayton amounted to a denial of due process. These contentions were rejected by the Supreme Court of the United States and the appeal was dismissed. That case is a far stronger case for the defendant than the instant one since in the instant case defendant and his attorney and Dr. Moore, his psychiatrist, as well as Dr. Drayton, the Commonwealth's psychiatrist, and all the prior history of the defendant agree that the defendant was sane, but was a moron or mentally deficient.*fn6 There is, therefore, no reason or justification for granting the writ in this case, or holding that the failure to review the death penalty which the sentencing Court had imposed constituted an abuse of discretion or a denial of due process.

It may not be amiss to add that, irrespective of any technicalities, if we believed that the sentencing Court was misguided by Dr. Drayton's testimony and that it imposed its sentence upon an erroneous state of assumptions or material facts which guided or controlled its decision, we would grant the writ in accordance with the principle of Townsend v. Burke, 334 U.S., supra. But it is obvious from the summary dismissal of the present application for habeas corpus, together with

[ 373 Pa. Page 497]

    the prior opinion of the sentencing Court which we quoted at some length in Com. v. Elliott, 371 Pa., supra, that there is no reason or basis for a further review of Elliott's sentence by the lower Court or by this Court.*fn7

Order affirmed.

Mr. Justice JONES concurs in the result.


Order affirmed.

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