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COMMONWEALTH EX REL. HARBOLD v. RUNDLE (09/26/67)

SUPREME COURT OF PENNSYLVANIA


decided: September 26, 1967.

COMMONWEALTH EX REL. HARBOLD, APPELLANT,
v.
RUNDLE

Appeal from order of Court of Common Pleas of York County, May T., 1966, No. 264, in case of Commonwealth ex rel. James W. Harbold v. Alfred T. Rundle, Superintendent.

COUNSEL

James W. Harbold, appellant, in propria persona.

John F. Rauhauser, Jr., District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 427 Pa. Page 117]

Petitioner-appellant James W. Harbold has again found his way to our Court. Harbold was convicted by a jury in 1962 of first degree murder; the jury fixed

[ 427 Pa. Page 118]

    the penalty at life imprisonment. At petitioner's express request post-trial motions were withdrawn; no appeal was taken. His first habeas corpus petition reached this Court in 1965 and, after an exhaustive review of the record, was denied. Commonwealth ex rel. Harbold v. Myers, 417 Pa. 358, 207 A.2d 805 (1965). A federal court habeas attempt followed with a similar lack of success. See United States ex rel. Harbold v. Myers, 367 F. 2d 53 (3d Cir. 1966), cert. denied, 386 U.S. 920, 87 S. Ct. 885 (1967).

Harbold would now have us for the first time consider an allegation that confessions employed at his trial were coerced.*fn1 Petitioner's claim bears a striking resemblance to that asserted in Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967); we stressed in Snyder the necessity of determining whether petitioner deliberately bypassed orderly state procedures available for assertion of his now claimed denial of due process. Our decision in Harbold's first habeas corpus attempt amply demonstrates that petitioner,

[ 427 Pa. Page 119]

    knowingly and intelligently, deliberately bypassed available state procedures by withdrawal of his post-trial motions and his failure to appeal.*fn2 The record, as extensively quoted in our prior opinion, see Commonwealth ex rel. Harbold v. Myers, supra at 362-64 nn.9-12, 207 A.2d at 807-08 nn.9-12, shows beyond peradventure that petitioner, after extensive consultation with counsel and with full knowledge of the available alternatives,*fn3 decided not to file post-trial motions or to appeal. Given his deliberate bypass of available state procedures, Harbold cannot collaterally attack the validity of his confessions. We reiterate our conclusion in Commonwealth ex rel. Harbold v. Myers, supra at 364-65, 207 A.2d at 808: "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. 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 [of post-trial motions]."

We also gave full recognition in our prior decision, as we did in Commonwealth v. Snyder, supra, to the possible impact of a Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822 (1963), "grisly choice." Again, we quote from our earlier denial of Harbold's claims: "If, indeed, there are cases in which a deliberate bypassing may be found in spite of the fact that a death penalty is a risk incurred by taking an appeal or otherwise pursuing

[ 427 Pa. Page 120]

    a procedural right, this is such a case." 417 Pa. at 365 n.13, 207 A.2d at 809 n.13.

Petitioner further insists that, under the doctrine of Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), he was deprived of assistance of counsel on appeal and that our decision in Commonwealth ex rel. Fink v. Rundle, 423 Pa. 133, 222 A.2d 717 (1966) demonstrates that he did not waive his right to appeal. Remanding to the trial court for a hearing as to whether the petitioner had waived assistance of counsel on appeal, we held in Fink that the short colloquy between court and prisoner was insufficient to remove the possibility that the waiver was unintentional.*fn4 By contrast, the record in the instant case is replete with indicia clearly demonstrating petitioner's waiver-deliberate bypass of his right to appeal. See Commonwealth ex rel. Harbold v. Myers, supra at 362-64 nn.9-12, 207 A.2d 807-08 nn.9-12; Commonwealth v. Wallace, 427 Pa. 110, 233 A.2d 218 (1967). Since Harbold deliberately bypassed his right to appeal, a fortiori counsel need not have been appointed and the Douglas claim is without merit.

Order affirmed.

Disposition

Order affirmed.


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