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COMMONWEALTH EX REL. GREEN v. RUNDLE. (01/21/64)

January 21, 1964

COMMONWEALTH EX REL. GREEN, APPELLANT,
v.
RUNDLE.



Appeal, No. 183, Jan. T., 1963, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1962, No. 529, in case of Commonwealth ex rel. Samuel Green v. Alfred T. Rundle, Warden. Order affirmed.

COUNSEL

Samuel Green, appellant, in propria persona.

Arthur J. Marion and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 413 Pa. Page 402]

OPINION BY MR. JUSTICE ROBERTS

In 1958, a jury found petitioner-appellant guilty of murder in the first degree and imposed a sentence of life imprisonment. Prior to and pending trial, the accused was free on bail. During the trial itself, he fled the jurisdiction. The trial was completed in his absence. While hearing the case, the jury was permitted to separate, but no objection was made to the separation. Petitioner's counsel filed a motion for a new trial, which was granted.

The accused was returned to Pennsylvania and, on October 5, 1961, appeared with new counsel before the trial court. He entered a plea of guilty generally to an indictment charging him with murder.*fn1 The Commonwealth certified that the evidence would not rise to a higher degree of murder than murder in the second degree. However, this would not be binding upon the court. The court, at the conclusion of all the testimony and argument by counsel, determined the degree of the offense to be murder in the second degree and sentenced petitioner to imprisonment for a term of ten to twenty years. No appeal was taken from the judgment of sentence. In December, 1962, the prisoner filed a petition for a writ of habeas corpus, to which the Commonwealth filed an answer. The court dismissed the petition without hearing.*fn2 This appeal is from that order.

[ 413 Pa. Page 403]

Appellant claims a denial of due process under the Fourteenth Amendment "at his second trial in which the court fixed the degree of guilt at second degree murder." He assigns several reasons for the issuance of the writ: (1) that he "was adjudged guilty of [murder in the ] first degree before the court heard all of the evidence"; (2) that the sentencing judge erroneously quoted petitioner's counsel in the first trial "that it was a first degree murder case;" (3) that the court erred "in concluding that petitioner's wounds were self-inflicted;" (4) that the court erred "in comparing defendant [petitioner] with a convicted slayer (Scoleri) ... simply because Scoleri had inflicted his own wounds"; and (5) that "the court considered his prior criminal record in determining the degree of guilt."

We have carefully reviewed both the record in the court below on the petition for habeas corpus and the entire transcript and record of the hearing on the plea. A brief recital of the basic factual background of the homicide will be helpful in view of the issues raised.

Appellant, without provocation and after previously threatening to kill the victim, stabbed him in the back of the head with a butcher knife and then proceeded to inflict a total of at least forty-nine cut and stab wounds. The two particularly damaging wounds were one in the left chest, downward and backward into the left lung, and another which cut through the muscles of the back and penetrated the small bowel. Numerous other wounds, which also could have been fatal, had been inflicted in the victim's scalp. The butcher knife was found in a nearby sewer where witnesses testified they saw petitioner drop it. A small pocket knife was found at the scene of the killing. Petitioner denied that there were ...


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