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United States v. Brierley

decided: May 28, 1969.

UNITED STATES OF AMERICA EX REL. ERNEST J. BOLOGNESE E-9803, APPELLANT,
v.
JOSEPH R. BRIERLEY, SUPERINTENDENT



Seitz, Aldisert and Stahl, Circuit Judges. Stahl, Circuit Judge (concurring).

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

The appellant was convicted of first-degree murder by a Pennsylvania state court jury in September, 1959. Following conviction and before sentencing, his attorneys filed a motion for a new trial, alleging generally that the verdict was against the law, the evidence, and the charge of the court, and assigning error to certain portions of the charge.*fn1 Under Pennsylvania practice, such a motion must be filed to perfect an appeal to the state supreme court.*fn2

On February 4, 1960, the appellant appeared with his attorneys before the court en banc and asked leave to withdraw the new trial motion. The pertinent record of that proceeding is:

" THE COURT: The only question at the trial was whether or not he was guilty or whether or not he was not guilty by reason of insanity.*fn3 The jury found against him. However, Mr. Bolognese, you did file a motion and reasons for a new trial which is presently before the Court for consideration. I have been informed by your counsel that it is your wish and desire to withdraw the motion and have it dismissed. However, in view of the seriousness of the charge and the type of defense, the Court is of the opinion that we should explain it to you fully and have you understand that, if you desire, you have a right to have that motion for new trial processed fully and decided by the Court. On the other hand, if you are satisfied that there is no merit in it, you have a right to withdraw it. Do you understand that?

" THE DEFENDANT: I understand.

BY THE COURT:

"Q. What is your wish in that matter?

A. I want to drop the appeal for a new trial.

Q. You understand your right to go ahead if you want to?

A. I do understand my rights.

Q. You have fully considered it and you want to drop it?

A. Yes.

" THE COURT: In accordance with the expressed desire of the defendant, Ernest J. Bolognese, in open court, after the matter was explained to him, the ...


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