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July 25, 1967

UNITED STATES of America ex rel. Adam STAMM
Alfred T. RUNDLE, Superintendent

The opinion of the court was delivered by: LUONGO

 This petition for writ of habeas corpus charges that relator's confinement under sentence of life imprisonment for murder is in violation of his constitutional rights. Four grounds were asserted as the basis for grant of the writ. A hearing was held and evidence received on only one of the grounds, no hearing being deemed necessary as to the other three.

 1. The indictments were defective.

 This ground was not inquired into since federal habeas corpus is not appropriate to test the sufficiency of a state indictment. Knewel v. Egan, 268 U.S. 442, 45 S. Ct. 522, 69 L. Ed. 1036 (1925); Budd v. Rundle, 267 F. Supp. 49 (E.D.Pa.1967); United States ex rel. Realmuto v. Wallack, 254 F. Supp. 1006 (S.D.N.Y.1966).

 2. Relator's plea of guilty was not voluntary because induced by improper conduct on the part of his attorney.

 Relator charges that his attorney advised him that a "deal" had been arranged with the District Attorney and the Judge under which relator would receive a sentence of not more than five years imprisonment if he pleaded guilty. This issue was explored by the state court on a petition for writ of habeas corpus and was rejected. Commonwealth ex rel. Stamm v. Myers, C. P. Berks Co., Nov. Term 1965, No. 16, aff'd per curiam, 424 Pa. 638, 227 A.2d 499 (1967). This court is satisfied that the state court afforded relator a full and fair hearing on that charge. There is ample evidentiary support for its findings. No hearing is therefore required on that charge by this court. Townsend v. Sain, 372 U.S. 293, 318, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

 3. A judge who had not heard any testimony or observed any of the witnesses participated in determining the degree of the offense after relator changed his plea to guilty.

 This allegation stems from the fact that Judge Body, then a member of the Berks County Court, now a member of this court, sat with Judge Hess when the latter announced his decision as to the degree of the offense after the change of plea.

 It is questionable whether this charge raises a constitutional issue at all, but it is so lacking in factual foundation that it is not necessary to consider the constitutional implications. The charge seems to be based entirely on the fact that Judge Body was present and that Judge Hess used the editorial "we" at the time of sentencing. It is clear from the state court records that Judge Body's role was completely passive. At the hearing on the state habeas proceeding, Judge Hess categorically stated that he alone had made the decision; and that he had prepared a written memorandum of the reasons for his decision prior to ascending the bench with Judge Body. Nevertheless, at my request Judge Body appeared at the hearing on the instant writ and, with relator's consent, made an unsworn statement. Judge Body stated that while he had no independent recollection of the event, his review of the state court record satisfied him that he sat with Judge Hess, but did not participate in determining the degree of the offense or the sentence.

 4. Improper use of coerced confession.

 The fourth ground advanced by relator is inarticulately stated, but may be broken down into two assertions. First, that his confession, unlawfully obtained, induced his plea of guilty. Second, that the confession was improperly admitted into evidence at the hearing held to determine the degree of the offense. The evidence taken at the hearing on this writ was restricted to these contentions.

 Relator's allegation that the statement obtained from him by the District Attorney of Berks County was involuntary and coerced is based on the following assertions; that he was taken into custody at 4:00 p.m. after a sleepless night and a full day of work and questioned intensively for several hours; that due to his lack of formal education and a style of speech peculiar to the Pennsylvania Dutch region some of his answers were not properly understood; that he signed some papers (which turned out to be his confession) after he was repeatedly told that he would not be permitted to see a lawyer or his family until he signed; and that he was not familiar with the contents of the papers which he signed without reading because he did not have his eye glasses.

 It should be noted that relator's conviction became final in 1961, and therefore the rulings in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) are not applicable. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Of course, relator's allegation that he was denied the right to counsel during his interrogation may be considered in determining whether or not his confession was voluntary. See Davis v. State of North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966).

 Relator has not satisfied me that his confession was involuntary, but even assuming that it had been obtained by coercion, he would not, by that fact alone, be entitled to the grant of the writ. A guilty plea, knowingly and voluntarily entered, constitutes an admission of guilt and is a waiver of all non-jurisdictional defects and defenses. United States v. Ptomey, 366 F.2d 759 (3d Cir. 1966); United States ex rel. Maisenhelder v. Rundle, 349 F.2d 592 (3d Cir. 1956). It is relator's burden to establish that the guilty plea was not voluntarily and knowingly entered. Merely establishing that a confession was coerced is not sufficient to render a guilty plea involuntary, it must be shown that the coerced confession played ...

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