The opinion of the court was delivered by: WOOD
This is the relator's second application for a writ of habeas corpus brought in this Court. The first proceeding was before our late and learned colleague Judge Egan, on July 22, 1960,
wherein the petition was dismissed as being premature.
The record adduced at that hearing is hereby incorporated into this proceeding. Now the relator claims that his writ is timely for reasons more fully considered hereafter in this opinion.
Judge Egan found, and we concur, that this confession was an obvious fabrication since in several instances the relator referred to himself as another participant:
'We each got 27.00 apiece, Julius Mercer, 'Snooks' Jackson, Williams and myself.' (Bill of Indictment No. 1052) 'We went to the grocery store, we picked up Julius Mercer and 'Snooks' Jackson on the way. When we got to this store, Williams and I got out of the car and I took William's gun, walked into the store and told the man that it was a holdup. The man gave me $ 75.00. 'Snooks' Jackson and Julius Mercer were outside as lookouts in Mercer's car. When we got out of the store, we jumped into the car with Mercer driving and we went to South Philadelphia to a relative of Mercer's and we split the money up. We got about $ 18.00 a piece, Julius Mercer, 'Snooks' Jackson, Williams and myself. They then drove me back to West Philadelphia and dropped me off.' (Emphasis supplied) (Bill of Indictment No. 1091)
After giving this statement, and following several preliminary hearings, the relator was incarcerated at Holmesburg Prison without bail until December 9, 1957. On that day, along with 12 to 13 other defendants, he was arraigned before the Court of Quarter Sessions for Philadelphia County and he pleaded 'guilty' to Bills of Indictment Nos. 1052, 1053 and 1091. Among the persons arraigned that day were three different defendants with the same last name, namely, Jackson. There were over 40 indictments covering these 14 defendants who were represented by eight attorneys. There existed a great amount of activity and confusion as these defendants were being arraigned together.
The relator was represented by counsel who advised him to plead guilty to all the bills because of the statement which he had signed. This attorney failed to recognize the patent discrepancies contained in the statement to which we have referred.
Relator testified that the first time he learned that he had pleaded guilty to robbery was upon his return to Holmesburg, when a social worker advised him to that effect. He then contacted his attorney and told him that he wanted to withdraw his plea of 'guilty' to these bills and plead 'not guilty' instead.
On April 14, 1958, the relator appeared before the Court for sentencing. On pp. 267-278, inclusive, of the original record of the proceedings in the Court of Quarter Sessions, there may be found the colloquy between the trial judge, the relator, his attorney and the Assistant District Attorney. It is clear that the request for a change of plea on Bills Nos. 1053 and 1091 was summarily refused by the Court. (N.T. 267)
Relator's attorney did not attach any significance to the errors in the relator's confession, and it is doubtful if he ever noticed them. (N.T. 57 Habeas Corpus Hearing before Judge Egan.) Accordingly, his counsel advised him not to change his plea to Bill No. 1052. His counsel testified at p. 275 of the original record that:
'If your Honor please, in the face of the statement shown to me by Mr. Williams (the purported confession of Jackson), that would be the basis of my advice to plead guilty. Since he says that that is not his statement, that he was not there, then I should think that his plea would have been not guilty.'
Thus, had the relator been properly counseled, it is apparent that his withdrawal of plea would have run to Bill No. 1052 as well as the other charges. This statement was read to the Court along with another ex parte statement of a co-defendant, Joseph Williams, implicating Jackson. Williams testified on June 10, 1963, in a related proceeding, that at the time he allegedly made that confession he was mentally ill. It is undisputed that subsequent to the making of the confession Williams spent five years in a mental hospital and has just recently been released.
Compounding these errors were the material misstatements of the District Attorney to the Court regarding the sworn testimony of Williams, wherein the District Attorney stated that Williams named the relator as a participant in all three robberies. This testimony was given in the case of Commonwealth v. Spanks, and the correct reading of the record shows that Williams referred to a Willie Jackson and not the relator as a co-felon.
All of these mistakes were allowed without the interposition of any objection by the relator's counsel and without any effort to correct these obvious ...