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COMMONWEALTH EX REL. JOHNSON v. RUSSELL (03/15/68)

decided: March 15, 1968.

COMMONWEALTH EX REL. JOHNSON, APPELLANT,
v.
RUSSELL



Appeal from order of Superior Court, Oct. T., 1967, No. 252, affirming order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1965, No. 59, in case of Commonwealth ex rel. Albert Johnson v. Harry E. Russell, Superintendent.

COUNSEL

David Rudovsky, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

Benjamin H. Levintow, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice Cohen concur in the result. Dissenting Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts.

Author: Musmanno

[ 428 Pa. Page 441]

On February 11, 1948, Albert Johnson, the petitioner in this case, appeared in court to answer four bills of indictment: one charging him with aggravated robbery, another, burglary with intent to rob and ravish, the third with assault and battery, and the fourth with unlawful possession of burglary tools. He pleaded guilty to the indictment on aggravated robbery and not guilty on the other charges. He was tried, with counsel representing him, by the presiding judge, without jury, and found guilty on all the charges to which he had pleaded not guilty. The court sentenced him on all the indictments to a term of imprisonment of not less than 13 1/2 years nor more than 27 years, beginning as of February 2, 1948.

On August 2, 1962, he was paroled for the balance of his maximum sentence to end February 2, 1975. On September 16, 1962, only six weeks after being paroled, he was arrested and later indicted on several charges. He pleaded guilty to aggravated robbery, assault and battery and aggravated assault and battery by cutting and not guilty to assault and battery, aggravated assault and battery with intent to ravish and indecent assault. He was found guilty of indecent assault, but not guilty of assault and battery with intent to ravish. He was sentenced on the aggravated robbery charge to

[ 428 Pa. Page 442]

    a term of not less than 10 years nor more than 20 years and sentenced on the indecent assault charge to a term of not less than 1 year nor more than 2 years, the sentences to run concurrently with the sentence on the aggravated robbery charge.

The Pennsylvania Board of Parole ordered him recommitted as a convicted parole violator to serve out the original sentence, to be followed by the sentences imposed for the crimes committed in 1962.

On June 7, 1964, Johnson sought out a writ of habeas corpus alleging violation of his constitutional rights at the 1948 proceedings, claiming that he did not have effective representation of counsel during the 1948 trial and that his guilty pleas were made involuntarily and without assistance of counsel. The petition was denied and Johnson appealed to the Superior Court. The Commonwealth moved the matter be remanded for an evidentiary hearing which was done. After the hearing the hearing judge dismissed the petition for writ of habeas corpus and the Superior Court affirmed per curiam.

Allocatur was allowed by this Court. Our study of the record leads inevitably to the conclusion that Johnson was ably and properly represented by counsel. At his trial in 1948 Johnson took the stand in his own defense and his testimony amounted to a confession and admission of burglary and robbery, nor did he deny the assault with intent to ravish. His testimony also coincided with his guilty pleas which he now contends were improperly obtained when, he says, he did not have assistance of counsel. Even his testimony at the hearing on his petition for habeas corpus accorded with the testimony he gave at the trial and at the time of his prior plea of guilty. During that hearing he admitted he had "burglarized" the house, that he had struggled with his victim and had

[ 428 Pa. Page 443]

    had a "tussle" with her. His prior pleas of guilty thus could not have prejudiced him since his testimony in open court and under oath confirmed the pleas. Commonwealth ex rel. Adderley v. Myers, 418 Pa. 366.

He claims further that he was deprived of effective assistance of counsel because his counsel was appointed on the same day as the trial. The evidence of his guilt was overwhelming. His victim, a woman 68 years of age, gave a full description of him to the police and later positively identified him as her assailant. She testified that she found him in her home, that he demanded money and submission to his lust, that he choked and struck her, ripped off her night clothing, seized her handbag and fled. Approached by a police officer several days later, he took to his heels but was apprehended. It is as clear and as unrebuttable as an arithmetic solution that Johnson was convicted because of the evidence and not as the result of any alleged ineffective assistance of counsel. We thus apply the ruling laid down recently in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 (decided November 14, 1967) that shortness of time for counsel to prepare for trial does not of itself constitute ineffective assistance. In such a situation the burden still remains on the prisoner to demonstrate constitutional deprivation. In meeting this burden, Johnson wholly failed, as the record decisively establishes. The record is entirely convincing that Johnson's convictions and the sentences imposed resulted from evidence properly introduced and which confirmed his guilt not only of the charges on which he chose to stand trial but also those to which he voluntarily pleaded guilty.

Justice Roberts has filed a dissenting opinion which, it is to be feared, unless replied to, may do damage to the cause of effective justice in the criminal courts of the Commonwealth and dissuade attorneys

[ 428 Pa. Page 444]

    from willingness to defend in impecunious cases. Justice Roberts goes to considerable lengths in attacking the professional actions of the attorney who represented the defendant, asking why he didn't do this, and why he did do that. It is very easy for one, and especially a judge, 20 years after a trial, to sit back in his easy chair and pick out supposed flaws in the actions of defense counsel. A reliable attorney acts according to the situation as he sees it and, so long as justice is done, he should not be posthumously indicted, as is being done in this case in the dissenting opinion.

Moreover, Justice Robert's analysis of the situation is not a correct one. He says that there was no indication that the defendant Johnson had waived his right to counsel when he pleaded guilty to the charge of assault with intent to rob and robbery. But the record shows, as already pointed out, that during his trial when he was in fact represented by counsel, the defendant took the stand and under oath admitted to burglary and robbery, his testimony thus being a reaffirmance of his plea of guilty. Even at his habeas corpus hearing, the defendant conceded that he had "burglarized the house," and that he had had a "tussle" with his victim. Since Johnson at the trial and at the habeas corpus chose to reaffirm his guilt while he had counsel, it seems like blowing soap bubbles to argue now that when he first made his formal plea he may not have had counsel.

Justice Roberts states that the Majority Opinion "distorts" the ruling in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599. But here we have more soap bubbles. There is no distortion in the Majority Opinion because it is based on what Justice Roberts himself said in the Maroney case, namely, "'The mere allegation of short notice to a defendant

[ 428 Pa. Page 445]

    and short conference with counsel is not alone self-sustaining. . .' The length of counsel's conversation with his client is thus but one of the factors which we must evaluate in light of the nature of the charge, the issues presented, the availability of witnesses, etc., to determine whether the course chosen by counsel had any reasonable basis when compared with the alternatives available."

Thus the test in determining sufficiency of time in a lawyer's preparation for a trial or hearing is reasonableness. The record smashingly shows in this case that whether Johnson's counsel had talked with his client an hour or five days, the facts remained the same. Johnson admitted his several crimes. Certainly Justice Roberts does not suggest that in the face of avalanching evidence of guilt, defense counsel must still attempt in some way to circumvent the facts of culpability.

The uncontested evidence reveals the commission of a bold and shocking crime. Mrs. Mary B. Simpkins, a 68-year old woman, was in bed in her home when the defendant Albert Johnson broke into the house in the dead of the night. He demanded money and gratification of bestial desires, struck her with his fists and choked her. He ripped off her pajamas, seized her handbag, and fled. This is all uncontradicted.

Yet, Justice Roberts wants to know why defense counsel did not explore Mrs. Simpkins' opportunity to observe the defendant in view of the fact that she said that her bedroom was illuminated by "my little light." Counsel should have asked Mrs. Simpkins, Justice Roberts says, "the location of the 'little light' or the degree of illumination afforded thereby, how long appellant was in the house, etc."

Why? The defendant himself acknowledged that he was the one who had broken into Mrs. Simpkins' home

[ 428 Pa. Page 446]

(see the transcript, that the dissenting Justice attached to his opinion): "Q. What were you doing in that house with the lady? A. I went in there ...


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