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September 25, 1963

UNITED STATES of America ex rel. Anthony PERPIGLIA
Alfred T. RUNDLE, Warden State Correctional Institution, Philadelphia, Pennsylvania

The opinion of the court was delivered by: FREEDMAN

This is a habeas corpus proceeding in which petitioner attacks his pleas of guilty and the sentence imposed thereon in a State court.


 Petitioner was represented by counsel when he pleaded guilty on July 30, 1947, before Judge Harry S. McDevitt in the Court of Quarter Sessions of the Peace of Philadelphia County to five bills of indictment, charging burglary, larceny, robbery, receiving stolen goods and aggravated assault an battery with intent to kill. On September 4, 1947, he was sentenced by Judge McDevitt to imprisonment for terms aggregating 50 to 100 years.

 After serving nine years in the Eastern State Penitentiary petitioner obtained a commutation of his sentence by the Governor and was released on December 14, 1956. *fn1"

 Less than six months later petitioner was arrested for similar offenses committed in the short period of his freedom. He was convicted of these offenses by a jury after a plea of not guilty and on June 11, 1958, he was sentenced by Judge Eugene V. Alessandroni to imprisonment for a term of 10 to 20 years on the charge of attempted burglary and a term of 3 1/2 to 7 years on the charge of assault and battery with intent to kill, the sentences to run consecutively from the expiration of the earlier, commuted sentences. The Pennsylvania Board of Parole thereupon ordered him recommitted for violation of parole and he is now confined pursuant to the order of recommitment. The maximum term of imprisonment on the sentences imposed by Judge McDevitt will not expire until January 14, 2049. On their expiration petitioner will be required to serve the sentences imposed by Judge Alessandroni, which total a minimum of 13 1/2 years and a maximum of 27 years. The convictions before Judge Alessandroni were attacked by a petition for a writ of error coram nobis filed by the defendant in 1959. A hearing on the writ of error coram nobis apparently was held in November 1959, but no decision has yet been rendered. *fn2"

 In 1960 petitioner challenged the sentences imposed by Judge McDevitt by a petition for habeas corpus in the State courts. The Court of Quarter Sessions, apparently without a hearing, dismissed the petition. Commonwealth ex rel. Perpiglia v. Banmiller, 25 D. & C.2d 318 (1961). The Superior Court of Pennsylvania affirmed in a per curiam opinion. Commonwealth ex rel. Perpiglia v. Banmiller, 196 Pa.Super. 311, 175 A.2d 334 (1961). The Supreme Court of Pennsylvania refused an allocator, 197 Pa.Super. xxxi, and certiorari was denied by the Supreme Court of the United States. Perpiglia v. Banmiller, 371 U.S. 894, 83 S. Ct. 193, 9 L. Ed. 2d 126 (1926). Petitioner has plainly exhausted his available State court remedies.


 Petitioner's basic claim is that his pleas of guilty and his confessions which preceded them were coerced by the police and that his conviction therefore was obtained in violation of the Due Process Clause of the Fourteenth Amendment.

 The Commonwealth would have us disregard the circumstances surrounding the confessions and pleas because of the general principle that a plea of guilty made with the advice of counsel bars a subsequent claim on habeas corpus that the evidence against the defendant was illegally obtained. See United States v. Gallagher, 183 F.2d 342, 344 (3d Cir. 1950), cert. den. 340 U.S. 913, 71 S. Ct. 283, 95 L. Ed. 659 (1951); Broadus v. Lowry, 245 F.2d 304 (6th Cir. 1957), cert. den. 355 U.S. 858, 78 S. Ct. 88, 2 L. Ed. 2d 65.

 A plea of guilty forecloses a defense, but it does not seal off subsequent inquiry whether the plea itself was freely and voluntarily entered. Waley v. Johnston, 316 U.S. 101, 62 S. Ct. 964, 86 L. Ed. 1302 (1942). The question in such a case is not the guilt or innocence of the defendant, but rather the voluntariness of his plea. Kercheval v. United States, 274 U.S. 220, 224, 47 S. Ct. 582, 71 L. Ed. 1009 (1927). On this issue the details of his detention and confession are relevant. United States v. Morin, 265 F.2d 241, 245 (3d Cir. 1949). See also Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 118, 122, 76 S. Ct. 223, 100 L. Ed. 126 (1956). Even the explicit avowal by a defendant in open court that his plea of guilty was not coerced does not foreclose inquiry as to its voluntariness, although it is, of course, evidential on the issue. United States ex rel. McGrath v. La Vallee, 319 F.2d 308 (2d Cir. 1963); United States v. Tateo, 214 F.Supp. 560, 564 (S.D.N.Y.1963).

 We must, therefore, make a broad inquiry into the 'totality of the circumstances' (See Fikes v. Alabama, 352 U.S. 191, 197, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957); Blackburn v. Alabama, 361 U.S. 199, 206, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960)) preceding the petitioner's guilty plea. And in so doing we must not permit the probable truth or falsity of his confessions to cloud the inquiry whether the law enforcement officials of the State by their conduct brought about confessions which were not freely self-determined. Rogers v. Richmond, 365 U.S. 534, 543-544, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961).


 Some time in April or May of 1947 *fn3" petitioner, who was then 20 years of age, was sentenced by Judge Curtis Bok in the Court of Quarter Sessions of Philadelphia County to the Pennsylvania Industrial School at Camp Hill for an indefinite period after a plea of guilty to a charge of attempted burglary. On June 19, 1947, while he was so confined, Detectives Driscoll and Cammittee of the Philadelphia police obtained custody of him on the authority of a writ of habeas corpus issued earlier that day by Judge McDevitt. The writ commanded the Superintendent of the Pennsylvania Industrial School to produce the body of Perpiglia in the Court of Quarter Sessions, Room 453, City Hall, Philadelphia, on the following day, June 20th. Detective Driscoll signed a receipt for the body of the petitioner in which it is recited that his delivery had been required by a writ of habeas corpus ad testificandum, and that he was to be safely kept and returned to the Pennsylvania Industrial School 'in due season'. (Petitioner's Exhibit 3.)

 The office of Detective Driscoll, who apparently was in charge of the investigation under Superintendent Richardson, adjoined the cellblock. The inmates therefore were peculiarly subject to his immediate control. He and his associates had complete freedom of entry at any time during the day or night. The cellblock itself was intended for the briefest custody. It lacked most of the bare amenities of a prison. There were no beds and the prisoners slept either an cots or on the floor. There were no recreational facilities, no adequate opportunity for exercise, and sanitation facilities were meagre.

 After seven or eight days petitioner, who had been kept from communicating with his family and was without counsel, signed a confession admitting his participation in a robbery. He was then promptly brought before a magistrate in Central Police Court in City Hall. The magistrate, after hearing testimony of Detective Driscoll regarding the robbery and considering the statement signed by the petitioner, held him without bail and committed him to the Philadelphia County Prison to await the action of the Grand Jury.

 Petitioner, however, was never transferred to the County Prison to which he was committed. Instead, the police continued to keep him as their prisoner in the Central Police Station, where he remained until his sentence on September 4, 1947, with one interruption on July 30, 1947, when he was arraigned.

 After the hearing before the magistrate petitioner's mother was permitted to visit him. He urged her to retain counsel for him, and she ultimately obtained the services of Martin G. Stein, Esquire, a Philadelphia lawyer who is now deceased.

 On July 30, 1947, petitioner was arraigned along with 20 other defendants before Judge McDevitt on many bills of indictment. The transcript of the proceeding notes Mr. Stein's presence on behalf of the petitioner, although the petitioner testified that he did not see him there. The transcript does not show the entry of pleas at that time, but it is agreed on all sides that it was at this hearing that petitioner pleaded guilty to the five bills of ...

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