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June 23, 1964


Appeal, No. 340, Oct. T., 1963, from order of Court of Common Pleas of Chester County, Miscellaneous No. 12114, 1963, in case of Commonwealth ex rel. Thomas F. Goodfellow v. Alfred T. Rundle, Superintendent. Certified to the Supreme Court.


Thomas F. Goodfellow, appellant, in propria persona.

Thomas A. Pitt, Jr., Assistant District Attorney, and Samuel J. Halpren, District Attorney, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 203 Pa. Super. Page 422]


This is an appeal from the refusal of the Court of Common Pleas of Chester County to grant a writ of habeas corpus to Thomas F. Goodfellow, a prisoner in a state correctional institution who is serving a sentence imposed in January, 1959, of 3 1/2 to 7 years on prison breach and a concurrent sentence of 1 to 2 years for larceny. Goodfellow had entered a plea of guilty on each charge. The petitioner alleges that he was not

[ 203 Pa. Super. Page 423]

    represented by counsel "nor did the court offer any assistance of counsel." The petitioner does not allege that he requested counsel nor that he was unable to obtain counsel for lack of funds or any other reason. He does allege that "an element of unfairness actively operated against him by reason of the fact the court failed to appoint him or even inquire of him whether he had counsel." There is no allegation of facts relating to an element of unfairness except the bald assertion that he had no counsel and none was offered him.

The court below examined the record and heard argument, but it did not take testimony. It concluded that the "petitioner made no request that the court appoint counsel to represent him, that he had a long and varied previous experience with the criminal law in the light of which he admitted his guilt of the offenses charged by entry of his pleas of guilty, and that no ingredient of unfairness entered into the cases ..."*fn1 From the dismissal of the petition Goodfellow appealed to this Court.

Similar Cases

This is one of numerous petitions for writs of habeas corpus being filed by prisoners who allege that their constitutional rights were violated at the time of their sentence because they were not represented by counsel. Although there has long been a continuous stream of petitions for writs of habeas corpus flowing from our correctional institutions, the number has approached flood proportions since the Supreme Court of the United States filed its opinion in Gideon v. Wainwright,

[ 203 Pa. Super. Page 424372]

U.S. 335, 83 S.Ct. 792, 9 L. ed. 2d 799 (1963).

Because of changing constitutional concepts, trial judges are frequently and understandingly uncertain of the procedure to be followed and the legal tests to be applied in the numerous habeas corpus cases now before them. As many of the cases pending before us lack distinguishing characteristics, we have decided to set forth at length in this opinion our view of the law on this subject, the procedure to be followed, and the tests to be applied. It is not to be presumed that this opinion will put to rest the numerous questions which arise from the new constitutional concepts expressed in Gideon v. Wainwright, supra. All manner of legal problems will inevitably continue to follow in its wake for years to come. We shall set forth here only a few principles which we deem applicable to this problem. We trust these principles will serve as guide lines for the trial courts and aid them in the disposition of the numerous cases now pending before them.

The counsel cases now before the Pennsylvania courts are important. The determination of constitutional rights is always important. A prisoner's freedom is certainly important to him. The premature release of many unrehabilitated criminals is important to the people of this Commonwealth. Furthermore, the mere number of cases makes this determination of utmost importance. There are hundreds, possibly thousands, of prisoners involved.*fn2 We have given this case

[ 203 Pa. Super. Page 425]

    and its companion cases the consideration which their importance demands.

As these decisions are of vital importance to the Commonwealth, we are certifying this case along with our views to the Supreme Court for disposition.

Constitutional Provisions

Art. I, ยง 9 of the Constitution of Pennsylvania provides, inter alia, "In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, ..."

The Sixth Amendment to the Constitution of the United States provides, inter alia, "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense."

The Fourteenthe Amendment to the Constitution of the United States provides, inter alia, that no state shall "deprive any person of life, liberty, or property, without due process of law; ..."

Practice in Federal Courts

From 1791, when the first ten Amendments to the Federal Constitution were adopted, until 1938, the right conferred on the accused by the Sixth Amendment to have the assistance of counsel was generally understood as meaning that in the federal courts the defendant in a criminal case was entitled to be represented by counsel retained by him. It was assumed, although not expressly decided, that this constitutional privilege did not comprise the right of a prisoner

[ 203 Pa. Super. Page 426]

    to have counsel assigned to him by the court if, for financial or other reasons, he was unable to retain counsel. See Bute v. Illinois, 333 U.S. 640, 661, 68 S.Ct. 763, 92 L. ed 986 (1948).

In 1938, the United States Supreme Court held for the first time that "The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L. ed 1461 (1938). The petitioner in that habeas corpus case had been arraigned, tried, convicted and sentenced without counsel. He had no prior record, had pleaded not guilty and had advised the court he had no counsel. He had been prosecuted in a state where he did not reside and had no relatives, friends or acquaintances. The United States District Court, holding that habeas corpus was not an appropriate remedy, did not consider whether counsel should have been appointed to defend him at his trial. The United States Supreme Court remanded the case for the taking of testimony on the question of whether the petitioner had waived counsel and for action in harmony with the opinion.

In Johnson v. Zerbst, supra, there had been a trial following a plea of not guilty, but the constitutional requirement for the appointment of counsel was later held to apply in federal cases where the accused pleaded guilty. Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L. ed. 830 (1941); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L. ed. 309 (1948). On March 21, 1946, the United States Supreme Court adopted a rule providing for the appointment of counsel in federal cases.*fn3

[ 203 Pa. Super. Page 427]

Federal prison doors were not opened by Johnson v. Zerbst, supra, although a flood of petitions for writs of habeas corpus were promptly filed by federal prisoners. There probably were two reasons for this. First, the federal courts held that a waiver of counsel was implied in the cases of prisoners who were sentenced prior to 1938. Macomber v. Hudspeth, 115 F.2d 114 (C.C.A. 10th, 1940), cert. den. 313 U.S. 558, 61 S.Ct. 833, 85 L. ed. 1519 (1941); Buckner v. Hudspeth, 105 F.2d 396 (CCA.10th, 1939), cert. den. 308 U.S. 553, 60 S.Ct. 99, 84 L. ed. 465 (1939). Second, the results obtained by one of the first prisoners to take advantage of the new interpretation must have dampened the enthusiasm of other prisoners for a new trial. Robinson, a prisoner at Alcatraz, filed his petition for a writ of habeas corpus in 1939 citing Johnson v. Zerbst and alleging that he had not been represented by counsel when sentenced to life imprisonment under the Lindbergh Act. He finally obtained a new trial. Robinson v. Johnston, 50 F.Supp. 774 (1943). At the retrial, represented by counsel, he was again convicted and this time sentenced to death. The death sentence was affirmed by the Sixth Circuit Court of Appeals, Robinson v. United States, 144 F.2d 392 (1944), and by the Supreme Court of the United States in an opinion by Mr. Justice BLACK, 324 U.S. 282, 65 S.Ct. 666, 89 L. ed. 944 (1945). Apparently Robinson was still petitioning the Supreme Court for reconsideration of his sentence in 1958. See 356 U.S. 978, 78 S.Ct. 1133, 2 L. ed. 2d 1145. Recently this Court affirmed a sentence imposed after retrial that was more severe than the original sentence. See Commonwealth v. Davis, 203 Pa. Superior Ct. 79, 198 A.2d 649 (1964).

[ 203 Pa. Super. Page 428]

Although the United States Supreme Court held that the Sixth Amendment required an indigent accused to be assigned counsel in federal courts unless he waived the right, it held that the Federal Constitution did not require assignment of counsel to an indigent accused in state courts except in cases of unusual circumstances. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L. ed. 1595 (1942). This was the law as set forth by the United States Supreme Court until 1963 when Gideon v. Wainwright, supra, was decided.

The Pennsylvania Rules

The appellate courts of Pennsylvania have held for many years that it is the duty of a judge presiding at the trial of a criminal prosecution to inform a defendant who appears for trial without counsel that he has a constitutional right to counsel, and that the failure to so inform a defendant being tried or to appoint counsel for him is fundamental error. Commonwealth v. Richards, 111 Pa. Superior Ct. 124, 169 A. 464 (1933); Commonwealth v. Jester, 256 Pa. 441, 100 A. 993 (1917); Commonwealth v. Cohen, 123 Pa. Superior Ct. 5, 186 A. 203 (1936). If a defendant is tried and sentenced without compliance with this rule, the question can be raised by habeas corpus. Commonwealth ex rel. Schultz v. Smith, 139 Pa. Superior Ct. 357, 11 A.2d 656 (1940). There is, however, a presumption of regularity which imposes upon the petitioner in a habeas corpus action the burden to establish that he did not waive counsel. Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1 (1942).

The rule established by these cases relates to trials, and not to cases where the accused pleads guilty. Our courts consistently held that the Constitution of Pennsylvania does not require the court to assign counsel

[ 203 Pa. Super. Page 429]

    to persons pleading guilty to non-capital offenses. Commonwealth ex rel. Ringer v. Maroney, 177 Pa. Superior Ct. 509, 110 A.2d 801 (1955). To invalidate of due process of law arising from a failure to of due process of law arising from a failure to have provided a prisoner with counsel, the prisoner was required to establish that an ingredient of unfairness actively operated in the process that resulted in his confinement. Commonwealth ex rel. Johnson v. Burke, 174 Pa. Superior Ct. 119, 121, 100 A.2d 125 (1953); Commonwealth ex rel. Pitchcuskie v. Banmiller, 194 Pa. Superior Ct. 534, 536, 168 A.2d 636 (1961). The Supreme Court of the United States refused many times to review the Pennsylvania courts' position on this subject.

It was within the discretion of the trial judge to appoint counsel when pleas of guilty were entered. In cases where the trial judge feared an injustice might result if the accused were not represented, he generally appointed counsel. Frequently, however, when a plea of guilty was entered and the accused faced no legal problem in determining his guilt which he freely admitted in open court, the trial judge did not appoint counsel. When an accused appeared without counsel, the conscientious judge took care to ...

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