The opinion of the court was delivered by: LORD, III
Odell Heath pled guilty on December 10, 1951, before Judge James Gay Gordon, now deceased, in the Philadelphia Court of Quarter Sessions to six bills of indictment, November Sessions, 1951, Nos. 1048-53, charging burglary, larceny and receiving stolen goods, and one bill of indictment No. 1054 charging possession of burglary tools. He was represented by appointed counsel. Relator was sentenced to serve consecutive terms totalling 25 months to 50 years, with sentence suspended on bills 1052 and 1053. Relator did not appeal. He has, however, exhausted state post-conviction remedies.
From these sentences relator was paroled on February 7, 1956. He is presently serving a sentence of 3 to 10 years for burglary imposed on June 19, 1963, having been "constructively paroled" from serving the remainder of his 1951 sentence on February 9, 1967.
Relator here attacks his 1951 conviction. At the outset we are faced with the question whether relator is "in custody" within the meaning of 28 U.S.C.A. § 2241(c) (Supp.1968) where the only "restraint" arising from that conviction is the service of parole at the expiration of his present, unattacked sentence. At the present time, relator is subject to the parole board's jurisdiction until the year 2004.
In Jones v. Cunningham, 371 U.S. 236, at page 243, 83 S. Ct. 373, at p. 377, 9 L. Ed. 2d 285 (1963), the Court said:
"* * * [Habeas corpus] is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose - the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. While petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the 'custody' of the members of the Virginia Parole Board within the meaning of the federal habeas corpus statute; * * *"
It makes little difference that we do not know the exact nature of the restraints and conditions to which relator will be subject when he begins service of parole on the 1951 sentence. Under the Pennsylvania statute it is clear that while serving parole relator is subject to the power of the parole board, 61 P.S. § 331.17 (1964), and that this board has "exclusive power to parole and reparole, commit and recommit for violations of parole." Id. It is also clear that relator can be recommitted to prison to serve the remainder of his 1951 sentence for a "technical violation" of his parole. 61 P.S. § 331.21a(b) (1964). These provisions alone constitute restraint sufficient to invoke federal habeas corpus jurisdiction under § 2241(c) (Supp.1968). Jones v. Cunningham, 371 U.S. 236, 242, n. 19, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963); accord, Benson v. California, 328 F.2d 159, 162 (C.A.9, 1964).
Nor are we precluded from deciding relator's contentions because they are "premature" now that McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238 (1934), has been overruled. Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), decided that federal habeas corpus jurisdiction was not defeated even though the petitioner was not entitled to his "immediate release" where he challenged the conviction supporting a consecutive sentence commencing at a future date and not the conviction for which he was currently incarcerated. The Court held that under these circumstances federal district courts were empowered "to fashion appropriate relief other than immediate release." Id. at 66, 88 S. Ct. at 1556. We turn to the merits.
Relator attacks his plea of guilty to bills of indictment No. 1048 and Nos. 1050-52 (conceding the voluntariness of his plea to the Teague burglary, No. 1049) on the ground that a coerced confession played a major role in inducing the guilty pleas which for that reason were rendered involuntary. We ordered a hearing.
At the hearing, relator was the only witness to testify. Neither the attorney who interviewed relator in Holmesburg prison before his plea, nor counsel who represented relator at the hearing on the plea testified because neither had any recollection of these incidents. The Commonwealth presented no evidence.
Relator is a fifty-year-old man who completed six grades in Philadelphia's public schools and left school in the seventh grade at the age of sixteen. Relator was interviewed in Holmesburg prison on November 11, 1951 by the Voluntary Defender's office while awaiting arraignment. This interviewer wrote two pertinent observations on his interview sheet: "Mentality dull" and "stammers badly." Relator's limited education, his tendency to stammer, and a limited mental capacity were evident at our hearing. During his testimony before us, relator was timid; his answers sometimes wandered, although they were simple and direct when his attention was focused.
Upon a review of the state record we find that his contentions are supported in important respects, and our observation of him leads us to believe the material aspects of his testimony:
On November 10, 1951, at approximately 1:00 a.m. relator was caught in the act of stealing several suits of clothes from a Mr. Teague's tailor and dry cleaning shop, which relator had just burglarized. He was held by Mr. Teague until two police arrived. One of the police grabbed relator, called him a dirty thief and punched him in the head. Relator was taken to the police station at 11th and Winter Streets, booked, and taken into a side room by Detectives Brantley and Wentz. One of them thrust before relator some papers describing unsolved burglaries and told him to pick out those "jobs" he had committed. Relator denied any knowledge of the burglaries, whereupon Detective Brantley "hit me in my side and knocked me out of the chair on the floor and I passed out * * *."
Relator awakened at Hahnemann Hospital about 2 o'clock in the afternoon, ten or eleven hours later. About 3 o'clock that same afternoon relator was returned to 11th and Winter Streets by the same two detectives, taken back to the same room, and in relator's words:
"They set me down in the chair and started taking off their coat and rolling up their sleeves and he said, 'Now I am going to read some of these here crimes off to you and the ones that you did, I want you to tell me that you committed them.'
"And I told them, I said, 'Mister, I don't know nothing about them crimes you are talking about.'
"And I said - and Brantley, he was standing behind me again and the next thing I know there was some slaps over my head. I don't know if it was a rubber hose or what and I said, 'Look, can't I call my brother, or something?'
"And he said, 'Yes, you can make a phone call when we get through with you.'"