decided: March 16, 1965.
COMMONWEALTH EX REL. HILBERRY, APPELLANT,
Appeal from order of Court of Common Pleas of Lawrence County, Dec. T., 1963, M.D. No. 27, in case of Commonwealth ex rel. William Thomas Hilberry v. James F. Maroney, Superintendent.
William Thomas Hilberry, appellant, in propria persona.
William R. Balph, Jr., Assistant District Attorney, and Kenneth E. Fox, Jr., District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.
[ 417 Pa. Page 536]
William Hilberry stands confined for life under a sentence imposed for the brutal murder of his wife on April 4, 1952. In 1963, Hilberry sought a writ of habeas corpus, but the petition was denied without hearing. Since the case involves homicide, the appeal from the dismissal comes directly to us.*fn1
The grounds upon which the petition builds deal with the petitioner's sanity at crucial moments in the conviction and sentencing chain. Because of this, a complete statement of the proceedings is required.
Five months after the murder, in open court and with two court appointed attorneys, petitioner-appellant entered a plea of guilty. The record reveals that the following dialogue occurred at the time the plea was taken: "The Court: Mr. Hilberry, the Court has before it an indictment at No. 1 June Term, in the Court of Oyer and Terminer, 1952, wherein you are charged in two counts, the first count charging murder and the second count charging manslaughter, what is your desire at this time? Mr. Hilberry: Guilty. The Court: Is it your desire to now enter a plea to the indictment? Mr. White: That is the defendant's desire. The Court: And you are represented by Robert White and Gilbert Long? Mr. Hilberry: That is right."
The court directed the reading of the indictment and the clerk concluded with the traditional question to the accused: "How say you, are you guilty in the manner and form as you stand indicted?" to which petitioner replied, "Guilty." Petitioner subsequently
[ 417 Pa. Page 537]
signed the indictment which his attorneys also signed as witnesses.
A month after the plea, the court en banc heard testimony to determine the degree of guilt and to fix the penalty. Petitioner did not testify. The court filed its opinion one month after the hearing, fixing the degree of guilt at murder in the first degree and setting the penalty at life imprisonment. On that same day, petitioner appeared with counsel in open court and sentence was pronounced. No statement was made by petitioner and none was requested of him.
Petitioner was spared a sentence of death because the court en banc determined that his mental condition and history were a substantial mitigating factor.*fn2
[ 417 Pa. Page 538]
During the hearing at which testimony was taken to determine the degree of guilt, four physicians who examined petitioner while he was in custody placed his mental age between that of an 8 to 12 year old child. Three of these physicians were of the view that he knew right from wrong. A fourth physician, the only psychiatrist, expressed the opinion that petitioner was not normal when born, that he suffered from organic deterioration of his faculties, and that he possessed the capacity of an eight year old child and less responsibility than such a child. The psychiatrist further concluded that while petitioner knew what other people said was right or wrong, he had no self feeling of what was right or wrong.
The court, writing in support of its sentence, made these observations: "[C]onsidering his history as we now know it, the fact that there could be no mercenary motive, he had nothing to gain but to end the nagging and berating of his wife, who was and had been suffering from depressive psychosis, cannot be overlooked and cast aside if human justice is to be conscientiously administered. The defendant's act in killing his wife under such circumstances certainly substantiates the medical and psychiatric evidence before us. Mentally retarded and immature, an individual of constitutional psychopathic state and emotionally unstable, with no understanding of the difference between right and wrong within himself, choosing to rid himself of annoyance, real or imaginary, by killing his tormentor, where a normal individual with the power of reason would have found the reasonable solution to his problems." (Emphasis supplied.)
[ 417 Pa. Page 539]
In concluding, the court added: "Our observation of the defendant during these entire proceedings serves but to confirm our analysis as above set forth."
Petitioner was transferred to Western Correctional Diagnostic and Classification Center, Pittsburgh, two weeks after the sentencing. Following a determination by the resident physician that petitioner was of unsound mind and unfit for penal discipline, the warden forwarded to the court an application for the appointment of a "commission in lunacy". Shortly thereafter, the commission was appointed by the court and a commission report followed five days later.
The lunacy commission deemed the petitioner to be a schizophrenic-paranoid. Its report found: "He was directed by a voice to kill his wife. 'Something came into my mind.' Prior to the act the patient was hunting in the house for someone hiding in house. Today [he] has visual hallucination -- seeing members of his family." The commission determined petitioner to be insane and of criminal tendency. On the same day the report was filed with the court (January 8, 1953), the court ordered petitioner committed to Farview State Hospital, a mental institution. He was admitted on January 13, 1953, and remained until September 9, 1958, at which time he escaped.*fn3
At Farview State Hospital a report was made on January 22, 1963, classifying petitioner's illness as schizophrenia, paranoid type. An evaluation of petitioner's mental status unequivocally concluded: "There is no doubt that at the time of commission of the crime he had lost his hold on reality and was driven to the act by his delusions with probably no thought of resisting impulse."
[ 417 Pa. Page 540]
Petitioner's self-drawn habeas corpus petition raises several questions of constitutional significance. He contends that at the time of sentencing he was insane and that, therefore, the imposition of sentence was invalid. He urges that he was not able to assist his counsel at any stage of the proceedings because he was mentally ill, and, therefore, he was "forced" to plead guilty. Finally, he attacks the validity of his confession because it was procured while he was insane. Petitioner makes the additional contention that he was insane when he killed his wife and that, accordingly, he should not have been convicted.
In the court below and in this Court, the Commonwealth takes the position that the "defense" of insanity was presented and rejected by the sentencing court.*fn4 Since no appeal was taken, the Commonwealth contends these issues cannot now be raised. Similarly, the court below, in rejecting the petition without a hearing, held that since petitioner was represented by counsel when he entered his plea, the issue of his legal sanity at the time the offense was committed has been determined and cannot be raised successfully in the present proceedings.
Our review of the petition and the entire record in the trial court satisfies us that the petition is non-frivolous, that it is not contradicted by the record, and that it raises material and substantial questions of fact which, if established, would entitle petitioner to a writ of habeas corpus. In such a situation a hearing is compelled. See Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 111, 194 A.2d 143, 144 (1963).
[ 417 Pa. Page 541]
In our view, both the Commonwealth and the court below misconceive the import of the petition.*fn5 We do not now deem it necessary to pass upon any of the issues bearing on the commission of the crime itself. We do, however, regard the issue of petitioner's legal competency, at the time his plea was given and at the time sentence was imposed, as an issue which must be adjudicated in these proceedings.
Our society has always entertained an abhorrence for convicting, sentencing or, in any way, proceeding penally against an accused who cannot comprehend his position before the court or who fails to meet the current legal standards of requisite mental competency. See, e.g., Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955). Proceedings which violate this fundamental and imbedded notion of fairness simultaneously violate our constitutional guarantees of due process of law. And if the record shows a plea or sentence so fundamentally unfair that it amounts to a denial of due process of law, habeas corpus will lie. Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 494, 96 A.2d 122, 124-25, cert. denied, 345 U.S. 976, 73 S. Ct. 1125 (1953). See also Thomas v. Cunningham, 313 F. 2d 934, 938 (4th Cir. 1963).
[ 417 Pa. Page 542]
The failure of the court to make specific inquiry of petitioner*fn6 to determine whether the plea was voluntarily and intelligently entered, coupled with the total medical history and especially the medical findings made by the sentencing court itself, lead us to the conclusion that the plea proceedings of September 5, 1952, may have been of no intelligible significance to this appellant-petitioner.
Having carefully reviewed the extensive record before us, we believe that the record presents a highly unusual factual situation. The trial court's considered observations following the entry of the plea of guilty and the testimony received thereon indicate a conclusion inconsistent with competency. Further inquiry should therefore have been made to determine the propriety of the court's prior acceptance of the plea of guilty.*fn7 So, too, appropriate inquiry should have been directed to ascertaining petitioner's competency at the time sentence was imposed.*fn8
We are of the view that the record before us*fn9 (including as it does the 1952 opinion of the court which
[ 417 Pa. Page 543]
supports, to a large extent, petitioner's allegations) requires a determination as to whether or not petitioner was legally competent at certain crucial moments in his conviction and sentencing. Since the court below did not hold a hearing before dismissing the petition, we deem it in the best interests of proper judicial procedure to afford that court the opportunity to independently pass upon the validity of the plea and sentencing.
We therefore remand the record to the court*fn10 below for a hearing*fn11 to determine whether petitioner
[ 417 Pa. Page 544]
was, at the time he entered his plea, mentally ill within the definition of the applicable law, and was thus unable to comprehend his position as one accused of murder and to co-operate with his counsel in making a rational defense, and to determine whether petitioner was mentally ill at the time sentence was imposed. See Act of June 12, 1951, P. L. 533, §§ 342-44, as amended, 50 P.S. § 1222-24;*fn12 Act of June 12, 1951, P. L. 533, § 102(11), as amended, 50 P.S. 1072(11); see Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959); Commonwealth v. Moon, supra.
Should the court below determine that petitioner's plea was not voluntarily and intelligently entered, it shall issue the writ and award a new trial.*fn13 If the court should find the plea of guilty was properly entered and that the petitioner was legally competent when sentence was imposed, then the sentence was imposed, then the sentence shall remain and the petition shall be dismissed. Should the court below determine that only the act of sentencing was invalid,*fn14 then the court shall vacate the original sentence and shall direct petitioner to appear for proper sentencing.*fn15
[ 417 Pa. Page 545]
The order below is vacated and the record is remanded for proceedings consonant with this opinion.
Order vacated and record remanded.
Dissenting Opinion by Mr. Chief Justice Bell:
The petition presents a new gimmick in the avalanche of petitions for habeas corpus and appeals which have been flooding Courts throughout our State and Country ever since Gideon v. Wainwright, 372 U.S. 335; Jackson v. Denno, 378 U.S. 368, and Escobedo v. Illinois, 378 U.S. 478. These decisions have caused a stepped-up war of "Criminals v. Society", with criminals being given by the Supreme Court of the United States greater and greater rights and law-abiding people less and less protection. How often, after a criminal's conviction has been sustained by a Court, can he deluge Courts with petitions for a hearing and discharge (or for a new trial) because allegedly his confession was involuntary, or he was (psychiatrically speaking) insane, or for any technically-stretched reason he was denied newly created "fundamentals" of a fair trial? Is there to be no finality to the law, and no protection for peaceful people in this constantly increasing and appalling crime wave?
On September fifth, 1952, five months after the deliberate and brutal murder of his wife, petitioner in open Court and while represented by two Court appointed attorneys, entered a plea of guilty of murder. A month after the plea, the Court en banc heard testimony to determine the degree of guilt and to fix the penalty. Petitioner did not testify. One month thereafter the Court filed its Opinion, fixing the degree of guilt at murder in the first degree and the penalty at life imprisonment. Petitioner was present with counsel
[ 417 Pa. Page 546]
in open Court at the sentencing but made no statement. However, the majority Opinion fails to note that the sentencing Court had a detailed history of defendant which was very favorable to him, and we believe it is obvious that in the opinion of trial counsel this history was more favorable than defendant's oral testimony would likely have been.
Four physicians examined petitioner while he was in custody, and testified at the hearing in open Court to determine guilt and punishment. Three of these physicians testified that in their opinion defendant knew right from wrong. The fourth physician, a psychiatrist, expressed the opinion that petitioner was not normal when born, that he suffered from organic deterioration of his faculties, and further concluded that while petitioner knew what other people said was right or wrong, he had no self-feeling of what was right or wrong. Even if the psychiatrist's testimony was believed, this is a new and legally inadequate test for insanity.
The Court en banc imposed a life sentence instead of death, because defendant was an unstable weak moron or a mental defective. It is clear as crystal that both the verdict and the sentence were permissible under the law. Commonwealth ex rel. Rivers v. Myers, 414 Pa. 439, 200 A.2d 303; Commonwealth v. Melton, 406 Pa. 343, 349, 178 A.2d 728; Commonwealth v. Smith, 405 Pa. 456, 459, 176 A.2d 619; Commonwealth v. Elliott, 371 Pa. 70, 89 A.2d 782. In Commonwealth v. Melton, 406 Pa., supra, the Court said (pages 349-350): "In Commonwealth v. Smith, 405 Pa. 456, we sustained a verdict of guilty of murder in the first degree with penalty of death, even though defendant was a sexual psychopath. We there said (pages 459-460): 'This Court has sustained a verdict of first degree murder with penalty of death where defendant allegedly had an irresistible impulse, was a moron or a mental
[ 417 Pa. Page 547]
defective or a sexual pervert or a psychopathic personality, or had been previously confined in the hospital for the criminal insane for 14 years, or was a schizophrenic psychopath or was an unstable, mentally defective moron, or was feeble-minded: [citing ten prior decisions of this Court]. . . .'"
This case superficially, but only superficially, has the elements of "a hard case which proverbially makes bad law." A lunacy commission on January 8, 1953, deemed the petitioner to be a schizophrenic-paranoid. Its report included the following statements which are obviously and necessarily based upon defendant's own self-serving statements and are typical of the statements or confessions of nearly every murderer: "He was directed by a voice to kill his wife. 'Something came into my mind.' Prior to the act, the patient was hunting in the house for someone hiding in the house. Today [he] has visual hallucination -- seeing members of his family." [The only customary statement of persons accused of murder which was omitted by defendant was: "I had a blackout and don't remember anything."]
The lunacy commission determined petitioner to be insane and of criminal tendency. On the same day the report was filed with the Court (January 8, 1953), the Court ordered the petitioner committed to Farview State Hospital, a mental institution. He was admitted on January 13, 1953, and remained there until September 9, 1958, at which time he escaped. He was discharged from Farview on or about June 8, 1959, and contends he is now sane.
Petitioner contends, without any corroboration from his trial lawyers or any new evidence, (1) That at the time he killed his wife, and at the time he made his confession, and at the time of sentencing, he was insane; and (2) that he was not able to assist his counsel at any stage of the proceedings because he was mentally ill, and therefore, he was "forced" to plead guilty.
[ 417 Pa. Page 548]
If there was any truth or substance of truth to these contentions, experience compels the conclusion that at least one of his two lawyers would have called to the attention of the Court the inability of the defendant-relator to adequately confer with his counsel or to comprehend his position or the crime with which he was charged. Moreover it is, from my experience, unbelievable that the two experienced Judges who sat in this case would have unanimously sentenced this defendant if either of them had any reasonable doubt of defendant's sanity at the time of the killing or of the plea or trial or sentencing.
The majority Opinion goes further in this case than any prior decision of this Court or of the Supreme Court of the United States. Except on the theory that the Supreme Court will in the future extend the law even beyond the lengths to which they have heretofore extended it, it is incomprehensible how anyone who is experienced and a realist can believe that two lawyers would allow a defendant to plead guilty (1) if he was insane, or (2) if he could not intelligently communicate to them (because of his mental illness or insanity) the facts and his thoughts and possible excuses or defenses.*fn* If new and additional loopholes, rights and escape-defenses are to be given a criminal, the Supreme Court of the United States and not this Court should establish them.
In the light of the record and of the findings of three doctors and of a unanimous two-Judge Court
[ 417 Pa. Page 549]
which tried and sentenced defendant, and his representation at all stages of the Court proceedings not merely by one but by two attorneys, his uncorroborated petition is so unworthy of belief as to justify its dismissal without a hearing.
For these reasons, I dissent.