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COMMONWEALTH EX REL. GOLDSMITH v. MYERS (07/01/68)

decided: July 1, 1968.

COMMONWEALTH EX REL. GOLDSMITH, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, March T., 1965, No. 5224, in case of Commonwealth ex rel. Walter Goldsmith v. David N. Myers, Superintendent.

COUNSEL

David N. Savitt, for appellant.

Michael M. Baylson, Assistant District Attorney, with him Michael J. Rotko, 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. Mr. Justice Cohen and Mr. Justice Eagen concur in the result. Concurring Opinion by Mr. Justice Roberts.

Author: Per Curiam

[ 430 Pa. Page 386]

In December, 1958, after jury trial, Walter Goldsmith was found guilty of murder in the first degree, with the penalty fixed at life imprisonment. Motions for new trial and in arrest of judgment were filed but later withdrawn. No appeal was taken.

On May 10, 1965, Goldsmith filed a petition for writ of habeas corpus. The court took extensive testimony on the petition and, after hearing and thorough consideration, dismissed the petition. The petitioner has appealed.

Goldsmith argues his constitutional rights were invaded when certain statements were introduced at the trial, these statements, he averred, having been coerced from him by the police. A review of the evidence which covers some 200 pages fails to substantiate the petitioner's contentions. It is quite clear from the testimony that the confessions made by the petitioner were wholly voluntary and not coerced by any force, threats of force, or by any other means.

[ 430 Pa. Page 387]

We affirm what the court below said in its thorough and well-reasoned decision, which concludes with the statement that: "Finally, having carefully observed the witnesses and weighing their testimony, we accept the testimony of the police officers and reject the conflicting testimony of the relator. We find no basis in the record for holding that the relator's will was overborne and his capacity for self-determination critically impaired . . ."

The court's conclusion in our opinion was the only reasonable one to be drawn from the evidence.

Following the original trial the court stenographer, who had covered the trial, died when only 309 pages of the testimony had been transcribed. Efforts to have other stenographers transcribe the notes of the deceased reporter proved unsuccessful. The petitioner now advances this situation as a reason for a new trial. He does not point to any specific prejudice or harm resulting to him from his not having the entire transcript of testimony, but contents himself with the argument that "the memory of those who testified in this proceeding have been dulled by the passage of years." However, there was available to him the testimony taken at the trial of three co-defendants. There were also available transcripts of preliminary hearings, original police reports, and the recollection of persons present at the appellant's trial, which could have been used for impeaching testimony of adverse witnesses. He chose not to draw from this material.

Since the defendant withdrew his motions for new trial and in arrest of judgment originally filed by him, and waited ten years before taking any action with regard to alleged deprivation of rights, he may not now use mere ...


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