The opinion of the court was delivered by: DAVIS
Before the Court is a petition for a writ of habeas corpus. In 1945, the relator received a sentence of 50 to 100 years imprisonment for burglary and receiving stolen goods. Pleas of guilty were entered on all bills upon which sentence was ultimately imposed. No direct appeal was prosecuted. Collateral review was instituted however, in August of 1966, in accordance with the Pennsylvania Post Conviction Hearing Act, twenty-one years after imposition of sentence. On April 5, 1967, the relator was granted leave to appeal nunc pro tunc, which subsequently, was duly filed. On September 22, 1967, the cause was remanded for additional findings of fact. On December 7, 1967, an order was entered denying relief. This was affirmed, per curiam, on April 10, 1968. Commonwealth v. Darrah, 212 Pa.Super. 712, 240 A.2d 81. Allocatur was refused by the Supreme Court, on May 21, 1968. Consequently, state remedies may be deemed exhausted.
The state records, including the trial and post conviction hearing notes of testimony provide an adequate basis for deciding this petition. Considering the completeness of the state record it is unnecessary to conduct a hearing. This conclusion is reinforced by the fact that the relator's counsel during all the state collateral proceedings has also entered appearance on behalf of the relator in this proceeding and has submitted the identical brief for our consideration. See Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).
Preliminarily, the relator asserts that the sentence as announced from the bench was so indefinite and unclear, as to be invalid.
Although some uncertainty as to the intent of the sentencing judge may ostensibly appear from an examination of the notes of testimony (p. 37-39), it is the accepted rule in Pennsylvania that the sentence as officially recorded upon the bills of indictment governs. Commonwealth v. Zelnick, 202 Pa.Super. 129, 195 A.2d 171 (1963); Commonwealth ex rel. Speaks v. Rundle, 209 Pa.Super. 227, 224 A.2d 805 (1966); Farriss v. Keenan, 77 Pa.Dist. & Co.R. 478 (1952). Any oral statements or remarks by the sentencing judge which are not expressly incorporated into the judgment as recorded, are not to be construed as determinative. Appeal of Marelia, 177 Pa.Super. 520, 110 A.2d 832 (1955).
Here, our examination of the original bills of indictment, all personally certified by the trial judge, unequivocally indicate that consecutive sentences of 10 to 20 years imprisonment were imposed on O.T. Bills No. 391, 393, 394, 395 and 397. As to Bills No. 392 and 396, no sentence was imposed. Under Pennsylvania decisions, it is apparent that sentence could not now be imposed on the latter two bills. Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773 (1964); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); Commonwealth v. Hoffman, 210 Pa.Super. 48, 232 A.2d 19 (1967). The answer filed by the respondent (document 5) demonstrates that the sentence as imposed is being properly applied. Consequently, this allegation is clearly without merit.
As a result of several physical beatings, the denial of food, and lack of sleep, the relator alleges that he involuntarily signed a confession. He then asserts that the existence of this confession formed the sole basis for ultimately pleading guilty.
After rather extensive examination by the Commonwealth and by the presiding judge during the Post Conviction Hearing, the Court concluded that "* * * his [relator's] entire story was fabricated after his hopes for release were frustrated by the denials of his numerous applications for commutation. In short, we find his testimony totally unworthy of belief."
Although we do not agree with the Commonwealth that failure to raise the issue of coercion in a timely manner constitutes waiver, it does indeed create a strong presumption of regularity. Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967). This presumption is not rebutted merely by the relator's uncorroborated assertions. Commonwealth v. Marshall, 429 Pa. 304, 239 A.2d 313 (1968); Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 202 A.2d 299 (1964), cert. denied 379 U.S. 976, 13 L. Ed. 2d 567, 85 S. Ct. 677, (1965). The relator still bears the burden of bringing forth sufficient evidence to establish at least a prima facie case before the Commonwealth would be required to present any evidence in rebuttal, let alone require this Court to accept the relator's allegations as true. Painter v. Peyton, 257 F. Supp. 913 (D.Va.1966); United States ex rel. Donahue v. La Vallee, 213 F. Supp. 439 (N.D.N.Y.1963). He must come forth with substantial evidence to overcome the presumption of regularity. Stewart v. Smyth, 288 F.2d 362 (4th Cir. 1961). Conclusory, unsubstantiated assertions are insufficient to form the basis of habeas relief, United States ex rel. Battle v. Fay, 219 F. Supp. 798 (S.D.N.Y.1963). Any other conclusion would reduce to a sham the requirement of placing the burden of proof upon the relator.
Accordingly, we conclude that the relator has failed to establish that his confession was not voluntary, or that it presented the ...