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COMMONWEALTH v. PHELAN (09/26/67)

decided: September 26, 1967.

COMMONWEALTH
v.
PHELAN, APPELLANT



Appeals from judgments of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1964, Nos. 468 and 469, in case of Commonwealth of Pennsylvania v. Frank Phelan.

COUNSEL

Abraham J. Brem Levy, with him John A. Papola and Peter J. Liacouras, for appellant.

Richard A. Sprague, First Assistant District Attorney, with him Edwin D. Wolf, William H. Wolf, Jr. and Alan J. Davis, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Eagen

[ 427 Pa. Page 267]

The appellant, Frank Phelan, plead guilty generally to two separate indictments charging him with the murders of Judith Lopinson and Joseph Malito.*fn1 Subsequently, after a hearing before a three-judge court, he was unanimously found guilty of murder in the first degree and sentenced to death in each case. These appeals from the judgments followed.

The prime assignment of error is that during the proceedings Phelan was denied due process of law. This is bottomed upon the contention, that the cumulative effect of certain rulings in the court below was to deny him a fair trial and the effective assistance of counsel in defending the indictments.

It is established beyond argument that Phelan was entitled to the effective assistance of counsel at every critical stage of the case. See Gideon v. Wainwright, 372 U.S. 335 (1963). And this necessarily entailed the opportunity on the part of counsel to thoroughly investigate the facts and properly prepare for trial.

[ 427 Pa. Page 268]

See Massiah v. United States, 377 U.S. 201 (1964), and Powell v. Alabama, 287 U.S. 45 (1932). Likewise, there can be no doubt but that he was entitled to a fair, complete and impartial hearing before judgment was entered against him. And this necessarily included the opportunity of presenting every fact which was material and relevant to the issues involved. However, despite the earnest arguments of able counsel, our study of the record is not convincing that Phelan was denied any of these constitutional mandates in this case. We will, therefore, affirm the judgments.

The factual background of the case is this:

During the early morning hours of June 19, 1964, Judith Lopinson and Joseph Malito were shot to death in the basement office of Dante's Restaurant, 1809 Chestnut Street, in the City of Philadelphia. At the time Dante's was operated under a partnership agreement by Jack Lopinson (husband of Judith) and Malito.

On July 15th, after an inquest conducted by the medical examiner of the City of Philadelphia, Jack Lopinson was charged with the murders and held for action by the grand jury. Later a warrant charging Phelan with the murders issued and on July 26, 1964, after a hearing before a magistrate, he was committed to the Holmesburg Prison pending action by the grand jury.

On the evening of July 27th, Phelan summoned the senior officer at the prison and told him he wanted "to confess who committed the murders." The homicide division at police headquarters was notified and on the following morning, Phelan gave the police a recorded, factual description of the killings and the circumstances which instigated them. Therein, he admitted designedly shooting the victims at the instance of Lopinson. The taking of this statement was interrupted temporarily to permit Phelan to appear in court

[ 427 Pa. Page 269]

    and testify, under oath, in a habeas corpus proceeding instituted by Lopinson. His testimony at this hearing corresponded to his statements to the police. At all times related before, Phelan was without the assistance of legal counsel.

On August 12th, John Patrick Walsh, Esq., who had been retained by the family, entered his appearance on behalf of Phelan. Mr. Walsh is a lawyer with extensive criminal trial experience and recognized by the Bench and Bar as one of Philadelphia's best in this area of the law.

On October 26th, Phelan appeared in court with Mr. Walsh and plead guilty generally to the two indictments charging him with the murders involved. During the proceedings and before the pleas were accepted, Phelan was personally questioned in open court as follows: "By the Court: (To Frank Phelan) Q. Your name is Frank Phelan? A. That's right. Q. How old are you? A. 25. Q. Incidentally, just for a little background, are you a native of Philadelphia, born here? A. I was born here. Q. Went to school in Philadelphia? A. Yes. Q. How far did you go to school? A. About nine years. Q. When you finished school, what were you in, high school? A. High School. Q. Are you married or single? A. Single. Q. You know what is going on? You understood everything that was mentioned just now? A. That's right. Q. You are before me charged with a serious offense, apparently two bills of murder and two bills of conspiracy to commit murder. You know what you are here for? A. That's right. Q. You are represented by John Patrick Walsh, Esquire, with whom you have conferred? A. That's right. The Court: Mr. Walsh, you are here and you represent him? Mr. Walsh: Yes. Mr. Sprague: Before he is arraigned, what is the plea going to be? Mr. Walsh: Guilty. Mr. Sprague: Prior to that plea, may I ask the defendant

[ 427 Pa. Page 270]

    a couple of questions? The Court: Yes. By Mr. Sprague: (To Frank Phelan) Q. You have discussed this case with your lawyer, Mr. Walsh? The Court: Do you mind looking at the Court and at the District Attorney as he speaks to you? Frank Phelan: That's right. By Mr. Sprague: (To Frank Phelan) Q. You have discussed it with your attorney? A. That's right. Q. You are entering a plea of guilty here. Is this plea voluntary on your own part? A. (No response). The Court: Q. Is it of your own free will? Frank Phelan: That's right. By Mr. Sprague: (To Frank Phelan). Q. By pleading guilty you are admitting that you took part in the murder of Judy Lopinson and Mr. Malito, is that correct? A. That is correct. Q. Have any promises, deal or commitments or anything been made to you by anyone from the District Attorney's office? A. No. Q. Any promises, deals, commitments been made to by anyone representing the police department? A. No. Q. Any promises, deals, commitments been made to you by anyone representing the Court? A. No. Q. Any promises, deals, commitments, or understandings existing between you and your lawyer, Mr. Walsh in return for this plea of guilty? A. No. Q. This plea is voluntary and free on your own part? A. On my lawyer's advice. Q. It is your own plea though? A. That's right. Q. And you realize that by pleading guilty if you are found guilty of first degree murder, you can be sentenced to either death in the electric chair or life imprisonment. You understand that? A. That's right. Q. And you desire to plead guilty, is that correct? A. That's right."

By agreement the hearing to determine the degree of guilt was postponed indefinitely.

On January 29, February 1, 2, 1965, Phelan testified, under oath, as a Commonwealth witness in the trial of Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552. Again his testimony dovetailed with his previous statements of guilt.

[ 427 Pa. Page 271]

On July 19, 1965, Phelan filed with the court a self-handwritten petition asking that Mr. Walsh be dismissed as counsel and other counsel be appointed on his behalf. Mr. Walsh filed a contemporaneous petition asking permission to withdraw from the case on the ground that he and his client had become estranged. On July 27th, after hearing, the court permitted Mr. Walsh to withdraw as counsel and on August 2nd entered an order appointing Mr. Levy and Mr. Papola, present counsel, to represent Phelan.

The rulings of the court below which, it is urged denied Phelan the effective assistance of counsel and a fair trial, were all entered subsequent to August 2nd. We will now discuss each one in detail.

Following their appointment, Phelan's counsel sought the court's permission on two occasions to withdraw his pleas of guilty and enter not guilty pleas on his behalf. The requests were denied.

The first such motion was filed on October 8, 1965, nearly one year after the pleas had been entered and accepted by the court,*fn2 and exactly three days before October 11th, the time previously fixed for hearing to determine the degree of guilt. The second such motion was filed on October 11th.

In these motions Phelan asserted he should be permitted to withdraw the pleas of guilt, because, (1) he had not been "arraigned" on the indictments in open court; (2) at the time he entered the guilty pleas his mental and physical condition were such that he was unable to comprehend the nature and effect ...


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