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decided: January 24, 1969.


Appeals from orders of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1959, Nos. 1062 and 1063, in case of Commonwealth v. John Littlejohn, and Sept. T., 1962, No. 1710, in case of Commonwealth v. Leonard Archambault.


Leonard M. Sagot, for Littlejohn, appellant.

Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for Archambault, appellant.

Benjamin H. Levintow, Roger F. Cox 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 Roberts. Mr. Justice Cohen and Mr. Justice Eagen concur in the result. Concurring and Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 433 Pa. Page 340]

Because both of these cases squarely present the same issue for our determination, we have consolidated them for the purpose of opinion. In No. 445, appellant Leonard Archambault, who is serving a life sentence following a conviction for first degree murder, filed a petition under the Post Conviction Hearing Act alleging that he did not knowingly and intelligently waive his right to a direct appeal. A hearing was held at which appellant's trial counsel testified that he remembered appellant's trial, that he had told appellant there was no possibility of securing relief through appeal, and that he warned appellant of the possibility of receiving the death penalty, rather than his present sentence of life imprisonment, should he be granted a new trial. The hearing judge chose to believe this account, notwithstanding appellant's contrary recollection, and found that appellant had knowingly and voluntarily waived his right of appeal.

In No. 372, John Littlejohn, appellant, who was also convicted of first degree murder and is currently serving a life sentence, sought relief through the Post Conviction Hearing Act. He alleged that his withdrawal of a motion for a new trial (an essential prelude to an appeal) was involuntary because trial counsel told him (at the suggestion of the trial judge) that if he were successful in obtaining a new trial the district attorney would ". . . be free to ask the same penalty he did previously . . . the sentence of death in the event of your conviction." The court below, after a full hearing, dismissed the petition, on the ground that the failure to make a motion for a new trial was voluntary.

[ 433 Pa. Page 341]

Both of these cases thus involve a failure to follow some post-conviction procedure because of an alleged fear of receiving the death sentence if successful in obtaining a new trial. In order to determine whether there is merit in this contention, it is necessary for us to decide if it is lawful for a defendant to be placed in such jeopardy of a death sentence in a second trial, once he has been found guilty of murder in the first degree and sentenced to life imprisonment.*fn1 Having carefully considered this difficult problem, it is our view that three constitutional provisions preclude the Commonwealth from seeking the death penalty under such circumstances.

Due Process

All are agreed that appellants, having been convicted of murder, had an absolute right of appeal to this Court. Act of February 15, 1870, P. L. 15, § 1, 19 P.S. § 1186. However, the Commonwealth argues that it is perfectly proper to establish as a condition to exercising that right, the implied agreement to waive all possible advantages which are part of the first conviction. But it does not require an especially vivid imagination to appreciate the unfortunate posture in which defendants are placed by this condition. The prisoner must decide whether to abandon his constitutional right to a fair trial and serve out his prison term under an invalid or unchallenged sentence, or exercise his statutory right to appeal in order to achieve his constitutional right to a fair trial, at the risk that his second

[ 433 Pa. Page 342]

    trial might result in the imposition of the death penalty. This makes the price of an appeal from an erroneous judgment in a first degree murder case the risk of a man's life. "The law should not, and in our judgment does not, place the defendant in such an incredible dilemma." Green v. United States, 355 U.S. 184, 78 S. Ct. 221 (1957). This choice can truly be said to be "grisly." Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822 (1963). "Such a price, in our judgment, is a hardship so acute and so shocking that our public policy cannot tolerate it." State v. Wolf, 46 N.J. 301, 216 A.2d 586, 590 (1966). See Patton v. North Carolina, 381 F. 2d 636 (4th Cir. 1967).

Further, we think that this choice not only shocks the conscience and offends our sense of justice, but also rises to an unconstitutional condition. In United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209 (1968), the Supreme Court of the United States held invalid a provision in the Federal Kidnapping Act which provided: if a defendant chose to be tried by a jury he was subject to the death penalty; if he waived his right to a jury trial he gained immunity from the death sentence. The Court held that "whatever may be said of Congress' objectives [in passing such a provision], they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights." The Supreme Court explained that "[t]he inevitable effect of such a provision, is of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment ...

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