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COMMONWEALTH v. RICHARDSON (01/15/69)

decided: January 15, 1969.

COMMONWEALTH
v.
RICHARDSON, APPELLANT



Appeal from order of Court of Oyer and Terminer of Delaware County, March T., 1955, No. 338, in case of Commonwealth v. Jerold Richardson.

COUNSEL

Jerold Richardson, appellant, in propria persona.

Ralph B. D'Iorio, Vram S. Nedurian and J. Harold Hughes, Assistant District Attorneys, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result. Mr. Justice Musmanno did not participate in the decision of this case.

Author: Jones

[ 433 Pa. Page 197]

This is an appeal from an order of the criminal courts of Delaware County denying Jerold Richardson's (appellant) Post Conviction Hearing petition.*fn1

[ 433 Pa. Page 198]

Appellant was originally indicted and convicted of the murder of Roy Wunder committed on September 20, 1954. The jury found him guilty of first degree murder and imposed a sentence of life imprisonment. Appellant appealed his conviction to this Court and we affirmed. Commonwealth v. Richardson, 392 Pa. 528, 140 A.2d 828 (1958). Appellant then filed a petition for habeas corpus relief. This petition was denied by the court below (Commonwealth ex rel. Richardson v. Banmiller, 47 Del. 26 (1959)) and affirmed per curiam by this Court (398 Pa. 427, 158 A.2d 550 (1960)).

On October 26, 1966, appellant filed a petition under the Post Conviction Hearing Act.*fn2 In his petition, appellant alleged he was entitled to relief on four grounds: (1) that the Commonwealth had been permitted to introduce the records of his convictions for felonies committed after the murder for the purpose of impeaching his testimony in violation of our holding in Commonwealth v. McIntyre, 417 Pa. 415, 208 A.2d 257 (1965); (2) that a written confession given while in police custody was coerced; (3) that oral statements given during a re-enactment of the crime should not have been admitted because they were coerced and because appellant was not represented by counsel at the re-enactment; and (4) that the Commonwealth's major witness committed perjury in testifying against the appellant.

[ 433 Pa. Page 199]

The court below, finding that the confessions were voluntary and that the remainder of the appellant's contentions were without merit, dismissed the petition. Appellant has appealed from this order.

The facts surrounding the murder and conviction are set out in Chief Justice Bell's exhaustive opinion reported in 392 Pa. 528, supra; therefore, we will recite only those facts necessary for the resolution of appellant's four contentions.

As to the first contention, the court below held that the issue of the introduction of appellant's previous criminal record had been raised and decided against the appellant in the habeas corpus proceedings and that, therefore, appellant could not raise the issue again in a post-conviction hearing under the provisions of sections three and four of the Post Conviction Hearing Act.*fn3 We are forced to disagree with this conclusion. It is true that appellant raised this issue in his habeas corpus petition. Nevertheless, in denying appellant's habeas corpus petition, the court below did not rule on the merits. The court held, "None of the above reasons are the subject of examination by habeas ...


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