The opinion of the court was delivered by: TROUTMAN
TROUTMAN, District Judge.
This is a petition by a State prisoner for a writ of habeas corpus. Relator entered a plea of guilty to a general charge of murder in the Criminal Courts of Philadelphia County on October 25, 1954. A three-judge court was impanelled which after hearing the testimony bearing upon the degree of guilt fixed the degree of the crime at murder in the first degree and sentenced relator to life imprisonment. No direct appeal was taken from the judgment of conviction and sentence.
On two separate occasions relator collaterally attacked his conviction and sentence by petition in the State courts and in each instance he alleged an involuntary guilty plea and a procedural impropriety by the three-judge court. The petitions were denied without a hearing and in each instance the Pennsylvania Supreme Court affirmed. Commonwealth ex rel. McCant v. Rundle, 418 Pa. 394, 211 A.2d 460 (1965); Commonwealth v. McCant, 424 Pa. 349, 227 A.2d 630 (1967).
In this petition for a writ of habeas corpus relator has advanced the same contentions which the State courts considered and rejected. In addition, it is alleged by relator that his rights to due process were violated when one member of the three-judge court received evidence in the absence of the parties to the case and the other members of the Court.
The Clerk of the Criminal Courts of Philadelphia County was ordered to produce the State Court record and the District Attorney of Philadelphia County was ordered to show cause why a writ of habeas corpus should not be granted. In his answer to the order to show cause, the District Attorney concedes that relator has satisfactorily exhausted his State remedies as to those contentions advanced throughout the State proceedings, Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967), but disputes the factual allegations contained in relator's petition, primarily with respect to the voluntary nature of his guilty plea. To resolve these factual questions an evidentiary hearing was conducted in this Court. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), as codified at 28 U.S.C. § 2254.
The principal contention advanced by relator concerns the voluntary nature of his guilty plea. In that connection, relator alleges that his rights to due process were violated in that his guilty plea was induced by his counsel's representation that the District Attorney assured a conviction of no higher than second-degree murder in the event of a guilty plea.
During the course of the conference it became apparent that the District Attorney and defense counsel were having a great deal of difficulty in coming to any sort of an agreement on the degree of guilt. This difficulty stemmed in large part from the facts subsequently developed concerning the relationship existing between the parties involved and the circumstances surrounding the homicide as follows: For approximately four years prior to the time in question, relator had been living with the victim of the homicide, a married woman. The decedent held herself out as the lawful wife of relator during this same period of time. On the morning of the day in question relator entered the apartment where he and the decedent had been living and found her in bed with another man. Whereupon he took a revolver from his person and fired it in the direction of this other man. The bullet passed through him and struck and killed the decedent. On these facts, defense counsel during the course of the conference sought a voluntary manslaughter conviction in return for a guilty plea. However, the District Attorney refused to certify or recommend anything at the conclusion of the conference, but did agree:
"* * * that after hearing the evidence if he [defense counsel] could establish that they [relator, and victim] had been living together, and so forth, as far as the sentence would go, I would not object to certifying second degree murder as to sentence."
State Court Record, p. 76.
A period of twenty minutes elapsed from the time court was recessed for the conference until court was reconvened. At that time, relator changed his plea to guilty to murder generally and the three-judge court was impanelled to fix the degree of guilt. At the conclusion of all the testimony, the District Attorney refused to certify or recommend that the degree of guilt rose no higher than second degree since the testimony indicated that relator and the decedent were not "living together" at the time of the homicide. Defense counsel vigorously objected to the refusal by the District Attorney to certify as agreed and argued to the Court that the testimony elicited from the various witnesses conclusively established that relator and the decedent had been "living together and so forth" as contemplated by the agreement. Indeed, defense counsel was so convinced that the record conclusively established "living together and so forth" that he represented to the Court at the conclusion of the testimony that:
"[it] was our understanding that the District Attorney, if asked by your Honors, would say he would recommend nothing higher than second degree * * *". State Court Record, p. 73.
The notes of testimony of the hearing conducted in this Court indicate as follows: At the time of the entry of his plea relator was thirty-one years of age
and had a third grade education. He was aware of the different degrees of murder and the permissible range of sentences. He testified that trial counsel advised him to plead guilty to murder generally based upon a conversation had between counsel and the District Attorney during the recess to which we previously alluded. The substance of this conversation as represented by counsel was that the District Attorney had assured counsel that a guilty plea would result in no higher than a second-degree murder conviction which carries with it a maximum sentence of from ten to twenty years. He further testified on direct examination that he was not aware of what it meant to plead to murder generally or for the District Attorney to certify to a particular degree. However, on cross-examination, he appeared to contradict ...