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UNITED STATES EX REL. DARRAH v. BRIERLEY

October 10, 1968

UNITED STATES of America ex rel. Frank E. DARRAH
v.
Joseph R. BRIERLEY, Superintendent



The opinion of the court was delivered by: DAVIS

 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).

 I.

 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.

 II.

 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."

 After independently reviewing the testimony of the relator, we agree with the conclusion of the Post Conviction Judge. Other than his own assertion, there is no evidence of any coercion on the part of the Commonwealth. In addition, by his own testimony, the relator decided to raise this issue, only after having unsuccessfully attempted on about 13 occasions to have his sentence commuted. We cannot perceive that a defendant would consider such a basic irregularity as a coerced confession as a mere secondary approach to obtaining freedom, to be pursued only if commutation attempts are not successful.

 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 ...


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