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October 8, 1954


Appeal, No. 339, Jan. T., 1953, from judgment of Superior Court, Oct. T., 1953, No. 54, reversing judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1951, No. 1775, in case of Commonwealth of Pennsylvania ex rel. Francis J. Gryger v. Cornelius J. Burke, Warden, Eastern State Penitentiary. Judgment reversed. Same case in Superior Court: 173 Pa. Super.Ct. 458. Proceeding upon petition of relator to revoke order denying his petition for writ of habeas corpus and for a rehearing. Before LEVINTHAL, J. Order entered granting writ and setting aside sentence. Commonwealth appealed to the Superior Court, which reversed the order of the court below. Appeal by relator to Supreme Court allowed.


Herman I. Pollock, Voluntary Defender, with him Miles Warner, Assistant Voluntary Defender, for relator, appellant.

Randolph C. Ryder, Deputy Attorney General, with him Frank P. Lawley, Jr., Assistant Deputy Attorney General and Frank F. Truscott, Attorney General, for Commonwealth, appellee.

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

Author: Arnold

[ 379 Pa. Page 12]


This is an appeal from the order of the Superior Court reversing the court below which had granted a writ of habeas corpus.

On November 27, 1944, Gryger way brought before Judge KUN in the Court of Quarter Sessions of Philadelphia County, to answer a charge under the Act of June 24, 1939, P.L. 872, Section 1108(b), 18 PS § 5108(b), charging him with being a fourth offender.

After Gryger admitted that he was the person named in the records, Judge KUN sentenced him to life, saying: "The law is that a person who has been found guilty of felony four times within the periods prescribed must be punished, because of those successive convictions ... I have to do my duty under the law ... I don't see any point in further discussion because the case seems very clear and it becomes my duty and I now pronounce sentence: that you undergo life imprisonment in the Eastern State Penitentiary, and the sentence of February 25th, 1944, is vacated in accordance

[ 379 Pa. Page 13]

    with the provisions of the Act of Assembly when sentence is life imprisonment." On February 23, 1945, the prisoner wrote a letter to this Court complaining that he had not received a fair trial in the "fourth offender" proceeding. The letter was treated as a petition for a writ of habeas corpus and denied on March 19, 1945. But the question was not raised in that case, as in the present proceeding, that Judge KUN had treated the matter of sentence as being mandatory.

On October 1, 1945, Gryger again applied for a writ of habeas corpus which was refused on the grounds that it was premature. Between that date and May 28, 1947, the defendant submitted four different communications in the nature of petitions for habeas corpus, all of which were denied either in this Court or in the court of quarter sessions.

In April, 1948, Gryger appealed to the Supreme Court of the United States from the decision of this Court, asserting that the Federal Constitution required Pennsylvania to release him under the due process of law clause because (1) he was sentenced as a fourth offender without counsel or offer of counsel; (2) one of the convictions on which his sentence was based occurred before the enactment of the Pennsylvania Habitual Criminal Act; and (3) that sentencing under the Act unconstitutionally subjected him to double jeopardy. On June 14, 1948, the Supreme Court of the United States affirmed the decision of this Court in denying the writ of habeas corpus.

On the proposition submitted by Gryger that the sentencing judge erred in assuming that the Pennsylvania Habitual Criminal Act made it mandatory for him to impose a life sentence, the United States Supreme Court said (334 U.S. 728, at page 731): "But there is nothing to indicate that he [the sentencing judge] felt constrained to impose the penalty except

[ 379 Pa. Page 14]

    as the facts before him warranted it. And it in any event is for the Pennsylvania courts to say under its law what duty or discretion the court may have had." (Italics supplied).

On March 21, 1949, the prisoner renewed in this Court his efforts for a writ of habeas corpus, charging that the district attorney who prosecuted him and the attorney who defended him in 1944, had failed in their respective constitutional duties toward him. We dismissed this petition on May 28, 1949.

In July, 1949, the prisoner attempted unsuccessfully to have the United States District Court for the Eastern District of Pennsylvania take jurisdiction of his case.

On October 9, 1951, the prisoner filed another petition for writ of habeas corpus in the Court of Quarter Sessions of Philadelphia County, alleging that the fourth felony conviction violated due process in that he was tried and sentenced twice on the same indictment.

On November 9, 1951, the Court of Quarter Sessions of Philadelphia County held that the conviction was "constitutionally unassailable" and an appeal to the Superior Court was later withdrawn. On February 6, 1952, the prisoner appealed for a rehearing before the same court (Judge LEVINTHAL) and the rehearing was granted. Judge LEVINTHAL now took extensive testimony, hearing the prisoner as well as the attorney who had defended him. He also examined the various records of the court proceedings which led to the sentence of November 27, 1944.

After a thorough hearing Judge LEVINTHAL granted the writ of habeas corpus, vacated the life sentence pronounced on November 27, 1944, and reinstated the sentence of February 25, 1944, thus giving the prisoner the status of a fourth offender unsentenced under the

[ 379 Pa. Page 15]

Habitual Criminal Act. The district attorney of Philadelphia County had not opposed the granting of the writ; however the Attorney General interceded and appealed the decision to this Court, which remitted the case to the Superior Court. That Court reversed Judge LEVINTHAL's decision and reinstated the life sentence. This Court granted an appeal and the case was heard by us.

The Pennsylvania Habitual Criminal Act of June 24, 1939, P.L. 872, § 1108, 18 PS § 5108, provides that any sentence thereby imposed "shall be reviewable on appeal by the Supreme or Superior Courts, not only as to alleged legal errors but also as to the justice thereof. Where any such defendant is indigent, the costs of appeal, together with reasonable counsel fee, shall be paid by the Commonwealth." (Italics supplied). There was no evidence that the defendant was "cautioned as to his rights," as provided by the Act. In view of the state's assumption of the expenses involved, an appeal would have been lodged to the court had the question following been raised.

More than once Judge KUN indicated that his sentence of life was limited to the identification of the prisoner and the acknowledgment of the four offenses. He said: "... on the basis of the record in each of these cases, and on the basis of your acknowledgment of identity, it becomes my duty, under the Act of Assembly, to treat such a case that is to say, where a person has been found guilty the fourth time of a felony within the prescribed period, to impose the sentence required by the Act." (Italics supplied).

We think it was never the intention of the legislature that the commission of a fourth offense would make it the duty of the court automatically to impose a life sentence. The whole phraseology of the Act presupposes a judicial hearing, which would mean an

[ 379 Pa. Page 16]

    examination of the life history of the defendant. Thus the statute provides for an appeal "as to alleged legal errors," and "as to the justice thereof [the life imprisonment]." When the fourth offender statute was enacted, the Commission of the Legislature appointed to study this phase of the New York Baumes Act reported:

"The Baumes Act requires a judge to sentence a fourth offender in certain cases of felony to life imprisonment, leaving no discretion whatsoever to the court. This Commission has considered the matter carefully and is not at all convinced that it is wise to take such a drastic step as to tie the hands of the court, even though a man may be convicted of his fourth major offense. It is as true that some men should be imprisoned for life after their first offense as unregenerate criminals as it is true that other men after the commission of their fourth offense should not be locked up for the balance of their natural lives.

"When this matter was submitted to the Judicial Conference of this Commonwealth called by Chief Justice VON MOSCHZISKER it was unanimously resolved that it was the sense of the conference that a system of increasingly graduated penalties should be imposed, dependent upon the number of former convictions of the accused.

"This thought has been introduced into the Act now presented by this Commission, with permission vested in the trial judge to sentence to life imprisonment for a fourth conviction. Not only is such a sentence not made mandatory upon the judge, but the propriety of such a sentence is reviewable by the upper court." (Appendix to the Legislative Journal of 1929, Vol. III, pp. 6156-57) (Italics supplied.)

Furthermore, the fourth offender's Act actually states that under the circumstances there outlined the

[ 379 Pa. Page 17]

    life sentence should be imposed "in the discretion of the judge trying the case." (Act of June 24, 1939, P.L. 872, Section 1108(b), 18 PS § 5108(b)). We quote with approval from Judge LEVINTHAL's observations in the court below: "... every Pennsylvania fourth offender enjoys the right to a full hearing on the question of the propriety of a life sentence in his particular case. A judicious determination of this matter must be based upon an understanding of the defendant's background, the extent of his education, his age, mentality, temperament and health, as well as a consideration of the several crimes of which he stands convicted, their tendency to show antisocial characteristics, their violent or non-violent nature, the presence or absence of confederates, the motive for their commission, the amount of money or other property involved, and all the other factors and circumstances bearing upon the ultimate decision whether the interests of justice and the welfare of society require that the particular individual be incarcerated for the balance of his life."

Judge LEVINTHAL found specifically as a fact that: "The following remarks of the sentencing judge, appearing in the official transcript of the hearing, make it perfectly clear that he considered it as his statutory duty to impose a sentence of life imprisonment, without regard to any of the surrounding circumstances." Judge LEVINTHAL, therefore, found as a fact that which the Supreme Court of the United States had not found, that is, that the sentencing judge considered the sentence mandatory. He also found as a conclusion of law that under the Act the sentence was not mandatory.

The judgment of the Superior Court must be reversed and the judgment of the Court of Common Pleas of Philadelphia County reinstated, the effect of

[ 379 Pa. Page 18]

    which was to vacate the sentence imposed by Judge KUN on November 27, 1944, and to reinstate the sentence of February 25, 1944, thus giving the prisoner the status of a fourth offender unsentenced. We must state, however, that the relator had been indicted on June 23, 1943, on charges of aggravated assault and battery arising out of a brawl with which he was erroneously charged. He was further indicted on twelve bills Nos. 251-262, July Sessions, 1943, each charging him with receiving stolen goods. On July 26, 1943, he pleaded guilty to the charge of receiving stolen goods in each of the last mentioned twelve bills. He was represented by counsel at the time. Following an unsuccessful attempt to escape from prison for which he was also sentenced, he was later brought to trial on bills Nos. 461 and 462 June Sessions, 1943, on February 25, 1944. After trial in which he was represented by counsel he was convicted on both bills and sentenced to the Eastern Penitentiary. On May 4, 1944, a proceeding was instituted charging him with having committed a fourth felony within five years of the last prior felony conviction of the crimes specified in Section 1108(a) of The Penal Code, 18 PS § 5108(a).


Judgment is reversed and the case is remitted with a procedendo in accordance with this opinion.


On November 27, 1944, Francis J. Gryger, without counsel to advise or defend him, was brought before Judge KUN in the Court of Quarter Sessions of Philadelphia County to answer to an information under the Act of June 24, 1939, P.L. 872, Sec. ...

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