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COMMONWEALTH v. HENDERSON (04/23/69)

decided: April 23, 1969.

COMMONWEALTH
v.
HENDERSON, APPELLANT



Appeals from order of Court of Oyer and Terminer and Quarter Sessions of the Peace of Allegheny County, Feb. T., 1956, Nos. 83 and 86, and from order of Court of Common Pleas of Allegheny County, Jan. T., 1965, No. 101, in cases of Commonwealth v. William J. Henderson, and Commonwealth ex rel. William J. Henderson v. James F. Maroney, Superintendent.

COUNSEL

Walter O. Howarth, for appellant.

Charles B. Watkins, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 433 Pa. Page 587]

The procedural matrix of this case is rather complex. Fortunately, we have been blessed with fine briefs from both parties, simplifying our task. Two appeals from the courts of Allegheny County are here combined, having been consolidated by order of this Court. That at No. 64 March Term, 1969, is a nunc pro tunc appeal from the order of the Court of Common Pleas dated December 27, 1965, entered by Judge Herman M. Rodgers, specially presiding, dismissing, after hearing, appellant's habeas corpus petition. The appeal at No. 48 March Term, 1969, is from the order of the Court of Oyer and Terminer, by President Judge Ellenbogen, dismissing, after hearing, appellant's petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1, as amended, 19 P.S. § 1180-1 et seq.

On December 27, 1955, Carol Smith, appellant's common law spouse, and Rose Smith, Carol Smith's mother, were killed by knife wounds at Carol Smith's home. At the same time, one Bennie Flemming, Rose Smith's common law spouse, sustained a stab wound. The appellant was indicted at No. 263 O. & T. January 1956 for assault with intent to kill Bennie Flemming; at No. 83 O. & T. February 1956 for the murder of Rose Smith; at No. 86 O. & T. February 1956 for the murder of Carol Smith; and at No. 85 O. & T. February 1956 for involuntary manslaughter. On February 8, 1956, appellant, after trial by jury, was convicted of assault with intent to kill upon Bennie Flemming. On June 8, 1956, in the case at No. 86, involving Carol Smith, appellant was convicted by a jury of murder in the first degree. Immediately after the verdict was announced, court-appointed counsel for appellant requested that the court impose sentence because appellant did not desire to appeal. Appellant

[ 433 Pa. Page 588]

    was then given a life sentence in the murder case to take effect at the expiration of the 3 1/2 to 7 years sentence then imposed for the conviction, at No. 263, of assault with intent to kill. Shortly thereafter, on the same day, June 8, 1956, appellant pleaded guilty to the murder of Rose Smith at No. 83, and on the basis of the testimony in the earlier murder trial, was convicted of first degree murder, for which he was given a life sentence to run concurrently with the life sentence imposed at No. 86. The involuntary manslaughter indictment was nolle prossed.

In 1965, appellant filed a petition for a writ of habeas corpus, averring that the confession which was admitted into evidence against him at his murder trials was involuntary. Counsel was appointed. During the course of the three hearings which followed, appellant was permitted to amend his pleadings so as to allege an unknowing guilty plea as well, and he produced testimony on this latter issue also. Judge Rodgers dismissed the petition, holding that the confession was voluntary and that the issue of an unknowing guilty plea was not cognizable in a habeas corpus proceeding where the petitioner was represented by counsel at the time of his plea.

On October 24, 1966, appellant filed a petition under the Post Conviction Hearing Act, alleging that he was denied his right to appeal from his conviction at No. 86; that he was twice placed in jeopardy for the same offense, and that he was denied the effective assistance of counsel in his trial at No. 86. A hearing on that petition was held on May 21, 1968.*fn1 During the course of that hearing appellant sought to amend his petition to include the allegation of an unknowing guilty plea. Judge Ellenbogen denied the motion on

[ 433 Pa. Page 589]

    the ground that the issue had been raised in the habeas corpus proceeding, and that the function of the Post Conviction Hearing Act court was not to sit in review of the habeas corpus court. Appellant also moved to amend his pleadings to add that he had been denied counsel in perfecting an appeal from the dismissal of his habeas corpus petition. Judge Ellenbogen noted that appellant had requested an appeal from the order dismissing his habeas corpus petition, and that on February 24, 1966, he (Judge Ellenbogen) had sent appellant's court-appointed counsel a letter directing him to take an appeal on behalf of appellant. This letter was apparently misunderstood by counsel. Judge Ellenbogen then directed petitioner's counsel to seek leave ...


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