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COMMONWEALTH v. FINNEY (01/15/69)

decided: January 15, 1969.

COMMONWEALTH
v.
FINNEY, APPELLANT



Appeal from order of Superior Court, Oct. T., 1967, No. 1186, affirming order of Court of Quarter Sessions of Philadelphia County, April T., 1956, No. 454, May T., 1956, Nos. 345 to 350, inclusive, and July T., 1956, Nos. 1103 to 1106, inclusive, in case of Commonwealth v. Paige Finney.

COUNSEL

Paige Finney, appellant, in propria persona.

Paul R. Michel and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen concurs in the result. Mr. Chief Justice Bell and Mr. Justice Jones dissent.

Author: O'brien

[ 433 Pa. Page 154]

Appellant was charged with possession and sale of narcotics in ten bills of indictment and with possession and use of narcotics in an eleventh bill of indictment. He pleaded not guilty to all charges, but subsequently on November 29, 1956, while represented by counsel, he withdrew his not guilty pleas and pleaded guilty to all eleven bills. Sentencing was postponed until February 5, 1957, at which time he was sentenced to a total term of imprisonment of not less than five nor more than twenty-five years. Appellant filed a petition for relief under the Post Conviction Hearing Act and, after a hearing in the Court of Quarter Sessions of Philadelphia County, his petition was dismissed. The Superior Court affirmed the dismissal and we allowed an appeal.

In his petition, appellant argues that he did not have the effective representation of counsel and that his guilty pleas were unlawfully induced by a promise of leniency. The allegation of ineffective assistance of counsel was raised by appellant in a prior post-conviction petition. That petition was dismissed by the Court of Quarter Sessions and that action was affirmed by the Superior Court. Commonwealth v. Finney, 209 Pa. Superior Ct. 764, 230 A.2d 926 (1967). No petition for allocatur was filed and that issue is now foreclosed and will not be considered by us. The contention that the guilty plea was unlawfully induced was not raised in the prior petition. The Commonwealth, nevertheless, does not argue that the contention was waived because the prior petition was drawn by the appellant

[ 433 Pa. Page 155]

    himself, a man untrained in the law, and it was dismissed without a hearing. We will consider that question only.

[ 433 Pa. Page ]

In Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968), at 528-530, a case involving an allegation of an improper guilty plea, we said: "Although appellant's testimony, if believed, would certainly entitle him to relief, the court below stated 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. [footnote omitted]. Quite simply, collateral relief in a case such 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." Following the hearing on the current petition, the hearing judge said: "After hearing in open Court the witness Page [sic] Finney giving testimony as to the transactions in November and February, 1956 and 1957, and after hearing the testimony of Mr. Neff, of the Philadelphia bar, [defense counsel] the Court concludes that the allegations of the defendant that he was promised a sentence of 2 to 5 years for the guilty plea are unfounded. And, that after reading the notes of testimony and the transactions before Judge Sporkin, [the sentencing Judge] the entire record, the atmosphere elicited from that record in terms of statements made by the witnesses for the Commonwealth, which was direct evidence of officers who purchased narcotics from this defendant in 1956, from that record it would appear that the defendant had full understanding of

[ 433 Pa. Page 156]

    the transactions that transpired before the court." We have reviewed the record in the light of the standard quoted from Johnson and, despite the statement of ...


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