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decided: September 17, 1964.


Appeals from order of Court of Quarter Sessions of Philadelphia County, May T., 1944, Nos. 887 and 888, in case of Commonwealth of Pennsylvania v. Eugene Garner, Jr.


Thomas M. Reed, Assistant District Attorney, with him Richard A. Sprague, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.

Herman I. Pollock, Defender, with him Vincent J. Ziccardi and William J. Stevens, Jr., Assistant Defenders, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J. Dissenting Opinion by Flood, J.

Author: Montgomery

[ 204 Pa. Super. Page 229]

This is an appeal by the Commonwealth of Pennsylvania from an order of the Court of Quarter Sessions of the County of Philadelphia setting aside a judgment of sentence after it had been executed and granting a new trial.

On May 26, 1944, appellee, Eugene Garner, Jr., who then was 20 years of age, was indicted on a charge of assault and attempted robbery. On June 21, 1944, he appeared for trial without counsel, pleaded guilty, and was sentenced for an indeterminate term at White Hill, where he served three years, was paroled, and subsequently was discharged from parole in November, 1950.

In December, 1959, Garner filed a petition to set aside his conviction, in which he alleged that he had not intelligently waived his right to counsel, that his confession had been coerced, and that at the time of the occurrence of the alleged assault and attempted robbery he had been in a drugged condition and had been drinking. The petition was dismissed without a hearing by the lower court on April 21, 1961. On appeal we affirmed on the opinion of Judge Eugene V. Alessandroni, which is published in 26 Pa. D. & C. 2d 289.

[ 204 Pa. Super. Page 230]

    a petition to vacate a judgment of sentence but in the form of a petition for a writ of corum nobis. By basing our decision in that case on the fact that petitioner's delay of 17 years before attacking his conviction was too long to grant relief and that on the merits there was no basis for appeal, we found it unnecessary to dismiss the appeal on strict procedural grounds or on the closely connected jurisdictional question, which we recognized, when we stated, at page 200 (A. 2d 779), "This constitutional question [waiver of right of counsel] is ordinarily raised in a habeas corpus proceeding, but, of course, could not be so raised in the instant case since appellant is not confined in Pennsylvania. Coram nobis is ordinarily not the proper procedure to raise such contention and it is not properly raised in this proceeding." We also cited the analogous case of Gayes v. New York, 332 U.S. 145, 67 S. Ct. 1711, 91 L. Ed. 1962 (1947). After having been sentenced as a second felony offender by the State of New York, Gayes petitioned to vacate a first conviction, which had also been imposed by the State of New York, on the ground that he had not had counsel at the first trial. With four Justices dissenting, the Court held that Gayes had delayed too long in attacking the prior conviction.

On the question of the procedural remedies available to Gayes in New York Mr. Justice Frankfurter, speaking for the majority, stated in Gayes v. New York, supra, at page 148, "But upon his subsequent sentence, as a second offender, in 1941, he had full opportunity, so far as appears, to contest whatever infirmity he may have claimed in the earlier sentence when the fact of that sentence was included in the sentence which he is now serving. Since the process leading up to the second sentence is not challenged he cannot now, so far as the United States Constitution is concerned, by a flank attack, challenge the sentence of 1938."

[ 204 Pa. Super. Page 232]

We are aware that when an executed federal conviction is used by a state to impose additional penalties under a state's multiple offender statute, the federal courts will permit a direct attack on the federal conviction. This remedy was made available in United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954). In that case the Supreme Court of the United States held that the custody requirement under the federal habeas corpus statute, 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, could not be met; but it invoked the all-writs section of the Judicial Code, 28 U.S.C. § 1651(a), 28 U.S.C.A. § 1651,*fn1 and treated the record as a motion in the nature of a writ of error coram nobis to justify the exercise of its jurisdictions. This practice is not inconsistent with the power frequently assumed by federal courts to review constitutional questions when there has been an exhaustion of state remedies. The federal district courts grant writs of habeas corpus under 28 U.S.C. § 2254, 28 U.S.C.A. § 2254, in multiple offender cases when state remedies have been exhausted.*fn2 In some of these cases there is dicta to the effect that before the federal courts will review the constitutional question the petitioner must exhaust all of the state remedies in both the state where he received his first conviction and also in the state where he is incarcerated. However, what gives ...

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