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decided: March 16, 1965.


Appeal from order of Court of Common Pleas of York County, Aug. T., 1964, No. 144, in case of Commonwealth ex rel. James W. Harbold v. David N. Myers, Superintendent.


James W. Harbold, appellant, in propria persona.

Lewis H. Markowitz, Earl R. Doll, Nevin J. Trout and Elmer M. Morris, Assistant District Attorneys, John T. Miller, First Assistant District Attorney, and Daniel W. Shoemaker, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 417 Pa. Page 360]

Appellant petitioned for a writ of habeas corpus which would release him from imprisonment. Appellant-petitioner is serving a life sentence imposed in 1962 after a jury returned a verdict of murder in the first degree. At the jury trial, two court-appointed counsel conducted petitioner's defense.

Following the verdict, counsel for petitioner filed motions for a new trial and in arrest of judgment.*fn1 Before the trial court passed on these motions, however, the petitioner himself wrote to the trial judge requesting that the post-trial motions be withdrawn and that sentence be imposed.*fn2 Informed of this development, petitioner's counsel consulted with him and discussed the consequences of withdrawing the motions. Shortly thereafter petitioner was brought before the court and sentenced.*fn3

In June of 1964, petitioner filed his petition for a writ of habeas corpus. The petition alleged, in reality, six grounds in support of the requested relief.*fn4 Three of these grounds were identical with those explicitly raised in the 1962 post-trial motions.*fn5 Two assignments

[ 417 Pa. Page 361]

    related to matters objected to during trial and, although not specifically set out, apparently were incorporated into the post-trial motions.*fn6 The sixth allegation in the habeas corpus petition concerned a matter not previously raised.*fn7 A three judge court en banc carefully scrutinized the petition for a writ of habeas corpus. In an extensive opinion, after discussing each of the petition's allegations, the court unanimously denied the petition. Because the court deemed the petition to be clearly without merit, no hearing was held. We agree that the petition should be denied.

Although we agree with the conclusions of the court below, we believe there is a further ground on which

[ 417 Pa. Page 362]

    the denial should be predicated. Upon review of this record, we conclude that petitioner waived his right to collaterally attack the validity of his conviction in the state court by deliberately by-passing the orderly procedures devised for direct post-trial review in this Commonwealth.*fn8

As we have noted, post-trial motions were filed on behalf of petitioner, but these were withdrawn on petitioner's initiative and express request.*fn9 When petitioner was brought before the court for sentencing on June 15, 1962, his counsel reviewed, in his presence and on the record of that hearing, the background of the defendant's request for the withdrawal.*fn10 Petitioner's

[ 417 Pa. Page 363]

    trial counsel asked if the facts had been correctly portrayed; petitioner affirmed that they had.*fn11 Thereafter

[ 417 Pa. Page 364]

    the court imposed sentence.*fn12 This record presents a situation in which petitioner himself chose to waive the pursual of alleged trial errors about which he now complains. The record clearly warrants a conclusion of effective waiver.

This is not a case where the defendant did not himself choose to forgo the normal post-trial procedures. Neither is this a case where failure to pursue the established procedure was due to mere neglect or inadvertence.

[ 417 Pa. Page 365]

Nor is it a case where the defendant can plausibly deny either that he understood the alternatives open to him or deny that he comprehended the consequences of his withdrawal. Furthermore, the record relating to the withdrawal of the post-conviction motions is entirely free from any suggestion of coercive circumstances.*fn13

[ 417 Pa. Page 366]

The courts of this Commonwealth, and most especially in recent times, have earnestly sought to provide a fair and full adjudication of all federal and state constitutional claims. This Court has exercised particular vigilance to see that, on both direct and collateral review, claims of federal, as well as state, constitutional rights are comprehensively and justly entertained and decided by our state courts.*fn14 Federal rights concern us as much as any other rights which we are charged to enforce. This practice has frequently been maintained even where established post-trial procedures may have been negligently or inadvertently ignored. Indeed, the practice has been followed even where there has been some possibility of a conscious choice to forgo the usual direct review provided, but where the record nevertheless does not clearly support a finding of intelligent, understanding waiver of orderly review procedures.*fn15 We have no intention of departing from our purpose of solicitously insuring that rights constitutionally conferred are not unduly forfeited. The case presently before us, however, falls into a different category.

This case is one in which there has been no undue forfeiture. It is one in which the record reveals that

[ 417 Pa. Page 367]

    petitioner understandingly decided to by-pass our posttrial review procedures. Justice can best be accomplished in an orderly framework, and when a defendant deliberately by-passes the adequate means provided for review of alleged errors he cannot insist that the state must now, at his discretion, provide an additional opportunity for review of his once abandoned contentions. There is every reason to hold such a defendant to his waiver instead of permitting him to reopen the case at whatever time the defendant chooses, at a juncture when witnesses may have disappeared, memories may have faded, and other evidence may no longer be available. The problems may be aggravated because a deliberate decision by a defendant to forgo established state remedial procedures induces and creates a justifiable belief and appearance that the case has been finally concluded.

Surely, the protections afforded one convicted of crime do not include the right to knowingly reject available post-conviction procedures without being bound by the consequences of such planned rejection. The orderly and expeditious disposition of criminal litigation, as well as the desirability for finality after opportunity for adequate review, precludes this defendant from exercising the privilege of asserting errors at a time or in a manner contrary to the currently established and applicable rules for the adjudication of such issues.

It is needless to dwell on the desirability of prompt review and on the difficulties presented by delayed review, difficulties which, among other things, affect both the ability to conduct satisfactorily a comprehensive habeas corpus hearing and the ability to proceed effectively with a new trial if one is required.

We need go no further in this case than to hold that the lower court could have placed dismissal of the petition on the ground that, in light of the facts and record

[ 417 Pa. Page 368]

    of this case, petitioner deliberately by-passed the procedures which were available to test the contentions he now seeks to assert. Because of this waiver, petitioner is precluded at this unduly postponed stage from successfully pursuing them in our courts.

Order affirmed.


Order affirmed.

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