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decided: October 3, 1968.


Appeal from orders of Court of Oyer and Terminer of Wyoming County, June T., 1953, No. 11, in case of Commonwealth of Pennsylvania v. William John Johnson.


James E. Davis and Thomas DeWitt, Public Defenders, for appellant.

Roy A. Gardner, for appellee.

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

Author: Roberts

[ 431 Pa. Page 523]

In 1954 appellant William John Johnson went to trial before a judge and jury on an indictment charging him with murder in the first degree. Near the close

[ 431 Pa. Page 524]

    of the Commonwealth's case, the prosecution introduced into evidence two confessions whose existence was unknown to both of appellant's counsel until that very moment. Defense counsel thereupon requested a recess, conferred with their client briefly in the court ante-room, then returned to announce that the plea would be changed to guilty. Subsequently, appellant was found guilty of murder in the first degree, and sentenced to life imprisonment. No direct appeal was taken.

Once in prison, Johnson began flooding the Court of Oyer and Terminer of Wyoming County with hand drawn habeas corpus petitions. He filed a total of eight, all of which were dismissed without hearing. Finally, in 1965 appellant filed his ninth pro se petition. This one went undecided for over a year, before it was finally dismissed; in its stead was substituted a petition under the Post Conviction Hearing Act. Counsel was appointed, and an evidentiary hearing held. Appellant contended that his guilty plea was motivated by an involuntary confession, and that the plea itself was not knowingly and intelligently entered. Relief was denied and appellant appealed to this Court.

Apparently not content to await the outcome of his appeal, while it was pending before us Johnson inundated the lower court with four more habeas petitions all of which were dismissed without hearing. When the fourth one was dismissed, however, appellant requested counsel (the same one who filed his previous appeal to this Court) and instructed him to prosecute a second appeal. This was done, resulting in appellant having two cases before us at the same time. Accordingly, counsel petitioned this Court to have Johnson's first appeal continued, alleging that the second one, involving solely an alleged violation of appellate rights under Douglas v. California, 372 U.S. 353, 83 S. Ct.

[ 431 Pa. Page 525814]

(1963), required our immediate attention. When the Commonwealth did not oppose this request, a continuance was granted.

Subsequently, however, the Commonwealth petitioned to have the continuance vacated and the two appeals consolidated. This petition was opposed by appellant, who continued to insist that the Douglas claim should be heard first. On February 22, 1968, this Court, believing that no prejudice would attend the consolidation, granted the Commonwealth's motion. Accordingly, both of Johnson's appeals are before us at this time. We shall discuss them in chronological order.

At the evidentiary hearing on the first of Johnson's two petitions under the Post Conviction Hearing Act, appellant testified that the confessions obtained by the police resulted from a combination of drugged food and appellant's own mental condition. The court below quite permissibly rejected Johnson's tale of drugged hamburgers and coffee, especially given the testimony of one of the original interrogating officers, who stated at the collateral hearing that he had purchased all the food consumed during the interrogation session, that he observed it being prepared, and that no drugs were placed in any of the hamburgers or cups of coffee. In fact, the officer testified that he himself was going to eat the food which appellant eventually ate, but that Johnson took it when the officer briefly left the room.

Appellant also contended that his own mental condition rendered his uncounseled confession inadmissible. There is no doubt that Johnson has had a long history of mental examinations. However, until 1966 none of these revealed any substantial evidence of mental disease or retardation.*fn1 Appellant's argument rests

[ 431 Pa. Page 526]

    largely upon the following statement made by the trial judge at the time of sentencing: "It must be plain to the counsel and to the jury and to those who are here in attendance that this defendant was as plastic as a child in the hands of those who obtained these confessions. He, apparently to me has no conception of the danger which has been hanging over him during the past few days. He seems to me to be in that state of mind that he can be of little help to counsel in his defense. This man is not legally insance, but in our judgment he is a mental case of low, confused mind." (Trial Record at 277.)

In Commonwealth ex rel. Hilberry v. Maroney, 417 Pa. 534, 207 A.2d 794 (1965) we were faced with a similar statement by the trial judge. Although we indicated that this statement, together with the reports of four examining physicians, could be enough to vitiate a guilty plea, Hilberry in no way controls this case. Hilberry's marginal mental condition was verified by four different medical doctors, all of whom placed the defendant's mental age between 8 and 12 years. One of the four, the only psychiatrist in the group, even reported that Hilberry was unable to tell right from wrong.*fn2 By contrast, the present appellant was the

[ 431 Pa. Page 527]

    subject of a sanity commission report dated only a month before his trial. It was the unanimous opinion of this commission, composed of two doctors and a lawyer, that Johnson was sane, responsible for his own behavior, and of average intelligence.*fn3 When it is considered that this report was accepted by the same judge who made the quoted statement, supra, we find little reason to accord much weight to this statement. Finally, we note that the remarks of the trial judge were made primarily to justify his "merciful" life sentence in the face of an atrocious crime (victim was a 94 year old woman who was strangled during an apparent robbery attempt) which was the subject of great public attention in the small community where it occurred.

Absent proof that appellant's confessions were the product of either drugs or mental deficiency, there is nothing left to support an involuntariness claim. Johnson

[ 431 Pa. Page 528]

    was interrogated only twice, for periods of twenty minutes and fifty-three minutes respectively, no threats were made, no violence was used, and the confession had been reduced to writing less than two hours after appellant arrived at the police station. These facts do not even approach coercion, let alone the degree of coercion needed to render a confession involuntary. Compare Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968) with Commonwealth ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A.2d 434 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879 (1961); Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968) and cases discussed therein.

Merely deciding that appellant's confessions were voluntary does not, however, dispose of his guilty plea contention; for in addition to arguing that the plea was primarily motivated by inadmissible confessions, Johnson also takes issue with the voluntariness of the plea itself. According to appellant, the conference in the ante-room lasted only a few minutes. Both counsel expressed the strong view that unless appellant changed his plea, he would receive the death sentence. Although Johnson admits that the thought of a death penalty frightened him, he steadfastly maintains that he never consented to the entry of a plea. When he was asked at the hearing below why he did not object when counsel formally entered the plea for him, appellant testified that because he misunderstood the nature of a guilty plea, he mistakenly believed that his lawyers had the right to enter the plea even against his will in light of the confessions, and further that the plea could result in a conviction of only murder in the second degree.

Although appellant's testimony, if believed, would certainly entitle him to relief, the court below stated

[ 431 Pa. Page 529]

    in its opinion that Johnson's story was not acceptable. Given the fact that the burden of proof is on appellant to show that his guilty plea was improper, Commonwealth v. Grays, 428 Pa. 109, 237 A.2d 198 (1968); Commonwealth v. Hill, 427 Pa. 614, 235 A.2d 347 (1967), relief could be denied even if the only testimony introduced at the hearing came from petitioner, and even if that testimony bespake the most grievous of errors.*fn4 Quite simply, collateral relief in a case such

[ 431 Pa. Page 530]

    as this requires either that the petitioner's testimony be believed, or that it be corroborated by some other source which is accepted as truthful.

Moreover, in the present case we need not rely solely on the decision of the hearing judge to disbelieve appellant's version of the plea, since the record also contains several damaging admissions by Johnson during cross-examination, as well as the testimony of one of appellant's trial counsel. Although appellant testified on direct examination that he did not comprehend the meaning or nature of a guilty plea, he admitted on cross-examination that he had previously pled guilty in 1940 to crimes of larceny and burglary. Johnson confessed that in 1940 he did understand the plea of guilty to mean that the pleader was telling the court that he had in fact committed the crime charged. Furthermore, Johnson told of having had past experiences in pleading not guilty. (Post Conviction Hearing Record at 266-69.) We find it difficult to believe, just as the court below found it difficult, that appellant could know so much about guilty pleas in 1940, yet forget it all 14 years later, especially given the fact that 12 of those 14 years were spent in custody, where talk of legal phrases and concepts so permeates the atmosphere.

Trial counsel also testified below. As he recalled appellant's trial, after the initial shock of hearing the Commonwealth introduce the confessions into evidence, and after objecting unsuccessfully to their admission, he requested a recess. According to counsel's version, the ensuing ante-room conference lasted approximately

[ 431 Pa. Page 531]

    fifteen minutes, during which time the nature of the guilty plea was explained to appellant, as well as the distinct possibility of a death sentence if the case went to the jury. It was counsel's recollection that Johnson consented to the plea because of his fear of the electric chair. Appellant's story about his lack of consent was flatly contradicted by this attorney who testified that at no time during the conference did Johnson voice any disagreement with the decision to change the plea. He concluded his testimony by saying that under no circumstances would he have entered a guilty plea for his client without having first secured appellant's consent. On the basis of this testimony, as well as the admissions of appellant himself, we conclude that Johnson did know the meaning of a guilty plea, and that the decision to enter this plea was in fact his own choice, not one forced upon him by counsel.*fn5 As such, this plea comports with the "personal participation" requirements of this Court, Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 342, 223 A.2d 699, 702 (1966), and of the Supreme Court of the United States, Brookhart v. Janis, 384 U.S. 1, 7, 86 S. Ct. 1245, 1248 (1966).

We now turn to Johnson's second appeal which comes to us following the denial, without hearing, of a petition for relief under the Post Conviction Hearing Act wherein appellant maintained that he was never

[ 431 Pa. Page 532]

    told of the right to appeal or the right to free appellate counsel if indigent.*fn6 If there be any single proposition of law in the rapidly evolving field of post-conviction remedies so well established that it rates the title "hornbook" it is that a petition under the Post Conviction Hearing Act must not be dismissed without an evidentiary hearing if it alleges facts which, if true, would entitle petitioner to relief. Section 9 of the Post Conviction Hearing Act specifically requires a hearing under such circumstances, and this Court has held that section 9 merely codifies prior habeas corpus law. Commonwealth ex rel. Harbold v. Rundle, 427 Pa. 117, 223 A.2d 261 (1967).*fn7

[ 431 Pa. Page 533]

However, even though appellant did allege facts which if proven would have entitled him to relief, the court below could still have denied Johnson an evidentiary hearing if it found that the right to litigate the issues raised in the petition had been waived under section 4 of the Post Conviction Hearing Act. Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967). Moreover, had the court below found such a waiver by virtue of the fact that appellant's first Post Conviction Hearing Act petition failed to raise the Douglas issue even though Johnson had counsel and the petition long post-dated the Douglas decision, we would have no difficulty affirming the denial of relief. Unfortunately, the opinion of the court below specifically recited that relief was being denied solely because the court had no jurisdiction.*fn8 This, we believe, was error.

The post-conviction judge took the position that since appellant's first Post Conviction Hearing Act petition was pending before this Court at the time the second one was filed, the court lacked jurisdiction over the subject matter. While it is of course true that a lower court loses jurisdiction over a case once it has received a writ of certiorari directing that the record be sent to an appellate court, Hodge v. Me-Bee Co., Inc., 429 Pa. 585, 590 n.1, 240 A.2d 818, 821 n.1

[ 431 Pa. Page 534]

(1968), this rule has no application to successive petitions under the Post Conviction Hearing Act, since each petition is a separate "case." Although the petition may be dismissed under proper circumstances either because it presents issues already litigated in a prior petition, or because the failure to litigate the present issues in a prior petition operates as a waiver, nevertheless the jurisdiction of the court over each petition is assured by statute, whenever these petitions are filed. Section 5 of the Post Conviction Hearing Act provides:

"Any person who desires to obtain relief under this act may initiate a post-conviction proceeding by filing a petition . . . with the clerk of the court in which he was convicted and sentenced which said court is hereby granted jurisdiction to hear and determine same. He may file a petition at any time. . . ." (Emphasis supplied.) Act of January 25, 1966, P. L. (1965) 1580, § 5, 19 P.S. § 1180-5 (Supp. 1967).

If the court below felt unable to adjudicate appellant's Douglas claim without having Johnson's entire case record before it, the proceedings could certainly have been continued until the first appeal was decided by this Court and the record returned. To have dismissed for want of subject matter jurisdiction, however, contravened the language of section 5 of the Post Conviction Hearing Act.

In its brief before this Court on the Douglas issue, counsel for the Commonwealth strenuously argues the presence of a section 4 waiver. If, on remand, the court below agrees with this contention, an order should be entered dismissing the petition. If, however, appellant can show the presence of "extraordinary circumstances" justifying his failure to raise the Douglas issue in his first Post Conviction Hearing Act proceeding, then an evidentiary hearing must be held since appellant

[ 431 Pa. Page 535]

    alleged, as a fact in his petition, that courtappointed trial counsel told him nothing about the right to appeal.*fn9

The order of the Court of Oyer and Terminer of Wyoming County in appeal No. 302, January Term, 1967 is affirmed. The order of that court in appeal No. 83, January Term, 1968 is vacated and the record remanded for further proceedings consistent with this opinion.


Order in appeal No. 302 affirmed; order in appeal No. 83 vacated and record remanded.

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