Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1964, No. 3605, in case of Commonwealth ex rel. Edward Spensky v. James F. Maroney, Superintendent.
Louis Abromson, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellant.
Hubert I. Teitelbaum, with him Martin M. Sheinman, and Morris, Safier & Teitelbaum, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Hoffman and Spaulding, JJ., dissent.
[ 208 Pa. Super. Page 303]
This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Allegheny County, in a habeas corpus proceeding, directing the discharge of the appellee and nolle prosequi of pending indictments unless tried before March 7, 1966. The case arises out of sentences imposed on Edward Spensky, the appellee, at No. 40 and No. 41 June Sessions, 1940, aggregating a minimum of ten years and a maximum of twenty years. These sentences were imposed, after pleas of nolo contendere, by the late President Judge McNaugher, who, at the time of the pleas had appointed Attorney Philip Sidransky to represent the appellee. In 1950 the appellee was released on parole. While on parole he was convicted in the State of Ohio in 1953 on a charge of carrying concealed weapons. Upon his release from the Ohio State Penitentiary he was returned to the Correctional Institution in Pittsburgh as a parole violator; and on February 21, 1960 was again paroled. While on this parole he was convicted in Washington and Armstrong counties on charges of burglary and thereupon he was again committed to serve the balance of his sentences.
This writ of habeas corpus attacks the validity of the judgment and sentence pronounced by Judge McNaugher on the ground that there was a lack of timely appointed counsel and lack of effective counsel. At the first hearing on the writ, the appellee testified that he was brought into court without counsel; that he advised the Assistant District Attorney that he was not guilty and wanted a jury trial; and that the court appointed Philip Sidransky, Esquire, to represent him. The appellee further testified that this attorney did not in any way aid him and that the District Attorney
[ 208 Pa. Super. Page 304]
induced him to sign a plea of nolo contendere by promising him a sentence of two to four years. He was permitted to testify on the question of his guilt or innocence of the crimes to which he pleaded and his testimony was to facts, that if true, would make him guilty only of being an accessory after the fact.
The Commonwealth offered the testimony of Roy Clunk, Esquire, who had been the second Assistant District Attorney of Allegheny County. He testified that he had no distinct recollection of this twenty-five year old case; that during the many years that he was Assistant District Attorney he never made a promise, such as related by this appellant, to any defendant. Mr. Clunk further testified that the late Attorney Philip Sidransky, counsel appointed by the court, was an experienced attorney who frequently appeared in criminal matters in the county courts. At the time of this hearing there was no narrative transcript of what took place at the time of sentencing. The court below accepted the testimony of this appellee and granted the writ on the ground that he did not, at the time of his plea, have the benefit of effective counsel.
Shortly after this order the narrative transcript of the sentencing procedure was discovered. The District Attorney presented a petition to the court below setting forth that fact and asking for a new hearing in that this transcript might throw further light on what happened so many years ago. The petition was denied. The Commonwealth appealed to this Court and the record was remanded for further hearing in accordance with the Commonwealth's petition.
At the second hearing a witness, J. Edward Weber, a county detective, testified that he participated in the investigation of the robberies; that Spensky admitted to him that he planned with his accomplices to commit the robbery; that he pointed out the place to be robbed; and that he led the police investigators to the spot
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where the wallets were deposited and that he took the guns from the accomplices and hid them where they were later discovered by the police. This witness also testified that the appellee and his counsel ...