OPINION AND ORDER
JOHN W. LORD, Jr., Chief Judge.
Relator, Lloyd Grover Black, who is presently incarcerated in a state penitentiary, was found guilty of murder in the second degree on June 6, 1962. (Bill of Indictment #281, February Session 1962). After the defendant entered a plea of guilty to murder generally, the District Attorney's office, by Harry Shrager, Esq., certified that the case would rise no higher than second degree murder (N.T. p. 2). In determining the degree of guilt, The Honorable David L. Ullman heard testimony without a jury. At the same time, and on the same evidence, Judge Ullman found the defendant guilty, after a plea of not guilty and a waiver of jury trial, of aggravated assault and battery with the intent to kill Sol Dortch, the brother of the homicide victim. (Bill #280, February Session 1962). Judge Ullman sentenced defendant Black to a term of 10-20 years on Bill #281 and 1 1/2 to 3 years on Bill #280, to run consecutively with the first sentence. No direct appeal was taken from this verdict.
Relator, pursuant to 19 Penna.Stat.Ann. § 1180-1 et seq., was given a Post Conviction Hearing Act hearing on October 13, 1967 before Judge Reimel. At this hearing relator, who was represented by Philip Price, Jr., Esq., of the Defender Association of Philadelphia, raised two issues: (1) his plea of guilty was made involuntarily and unknowingly and (2) he was denied his right to a direct appeal. Judge Reimel, after a full evidentiary hearing, dismissed the relator's petition and no appeal was taken.
On February 27, 1968, at a second postconviction hearing, relator attempted to collaterally attack his conviction by raising two further issues, to wit (1) infringement of his privilege against self-incrimination and (2) denial of his right to competent counsel. The Honorable Theodore B. Smith, Jr., who presided at this hearing, dismissed the petition with prejudice on the ground that, since no extraordinary circumstances were alleged, failure to raise these issues at the prior Post Conviction Hearing Act hearing constituted a waiver. See 19 Penna.Stat.Ann. § 1180-4(b)(1). However, Judge Smith did grant the relator the right to appeal Judge Reimel's decision nunc pro tunc and expressly told relator that he had a right to appeal his (Judge Smith's) decision. An appeal was taken to the Supreme Court of Pennsylvania which affirmed the order of Judge Smith. Commonwealth v. Black, 433 Pa. 150, 249 A.2d 561 (1969). It does not appear that relator ever appealed Judge Reimel's decision.
Since this Court finds that relator has not "deliberately sought to subvert or evade the orderly adjudication of his federal defenses in the state courts", Fay v. Noia, 372 U.S. 391, 433, 83 S. Ct. 822, 847, 9 L. Ed. 2d 837 (1963), by his failure to raise at his first post-conviction hearing, the two issues which he attempted to raise at the second, we conclude that the relator may raise these issues in the federal courts.
Since no evidentiary hearing had been conducted on these two issues, this Court ordered such a hearing. For the sake of judicial economy the Court also decided to hear evidence on the two issues raised at relator's first hearing, even though it does not appear that he has appealed that decision. See United States ex rel. Montgomery v. Brierley, 414 F.2d 552 (3rd Cir. 1969).
On September 25, 1969, this Court held a full evidentiary hearing at which time evidence was taken on all four of relator's grounds of collateral attack: (1) the introduction of an involuntary confession at the trial; (2) his plea of guilty was not made knowingly and intelligently and was motivated by his confession; (3) he was deprived of effective assistance of counsel; and (4) he was denied his right to a direct appeal. Subsequent to our hearing, George D. Bruch, Esq., counsel for relator, submitted a brief and the Commonwealth submitted a reply brief on October 21, 1969.
I. Involuntary confession used at the trial.
Relator first alleges that his right against self-incrimination was violated in that the statement given during the initial police interrogation, and which was subsequently introduced at the trial, was coerced from him. In the normal situation a validly given guilty plea constitutes an admission of guilt and is a waiver of all non-jurisdictional defects and defenses. United States v. Ptomey, 366 F.2d 759 (3rd Cir. 1966); United States ex rel. Maisenhelder v. Rundle, 349 F.2d 592 (3rd Cir. 1965). However, where a criminal defendant has pleaded guilty to murder generally, he has not waived his right to object to evidence which is being introduced on the issue of the degree of the offense since the degree of guilt is still at issue.
United States ex rel. Stamm v. Rundle, 270 F. Supp. 819 (E.D.Pa.1967); aff'd per curiam, 389 F.2d 1006 (3rd Cir.); cert. denied, 393 U.S. 880, 89 S. Ct. 181, 21 L. Ed. 2d 153 (1968); Commonwealth ex rel. Sanders v. Maroney, 417 Pa. 380, 207 A.2d 789 (1965). Relator's allegation that this statement was coerced from him is based on the following assertions: that from the time he was arrested (around 11 P.M. Saturday) until the time he signed his statement (11:30 A.M. Sunday) he was not allowed to sleep nor was he given any food; he was not advised of his right to counsel or that he could remain silent;
he was not allowed to make a phone call; the police told him that the object of the stabbing, James Dortch, had died; the police threatened to put the children of his brother's girlfriend in jail; and the police told him that it "would mean a whole lot" if he gave a statement before anyone else did. After our evidentiary hearing, this Court is satisfied that the statement was neither given involuntarily nor coerced from the relator. However, even assuming pro arguendo that it were, it would not, in this case, warrant the granting of the writ. Under Pennsylvania law, the failure to object to allegedly inadmissible evidence precludes the individual from attacking its admission at a subsequent time. See Pellegrene v. Luther, 403 Pa. 212, 169 A.2d 298 (1961). While it is true that on federal habeas corpus "the procedural default will not alone preclude consideration of [the] claim" Henry v. Mississippi, 379 U.S. 443, 452, 85 S. Ct. 564, 570, 13 L. Ed. 2d 408 (1965), if the failure to object is a "deliberate bypassing by counsel of the contemporaneous-objection rule as a part of the trial strategy," Id. at 451-452, 85 S. Ct. at 569, the relator is equally barred from objecting in the federal courts. Henry v. Mississippi, supra ; Budd v. Rundle, 267 F. Supp. 49 (E.D.Pa.1967) aff'd sub nom. 398 F.2d 806 (3rd Cir. 1968); United States ex rel. Parker v. Rundle, 259 F. Supp. 420 (E.D.Pa.1966).
In the instant case, Edwin Naythons, Esq., counsel for relator at the trial, made no objection to the introduction of relator's statement. In fact, the only comment made by Mr. Naythons at the introduction of the statement was in response to a question posed by the Court, to wit whether or not counsel had seen the statement. Counsel responded: "Yes, sir. I have seen the statement and I have read it very carefully." (N.T. p. 70). Since the relator's plea of guilty to murder generally still left open the issue of the degree of guilt, it was in relator's best interests to offer evidence or to allow evidence to be introduced, which might serve to mitigate the degree of the offense or the sentence. Relator's statement contained several facts which, if believed, might have had this favorable effect. In the statement the relator stated that the deceased grabbed him first and that he (Dortch) had a knife in his hand, and that Dortch started coming towards him with the knife. (N.T. p. 72). These facts tend to show that relator was not the aggressor, and therefore might serve as a mitigating factor. The statement also recited that immediately prior to the knifing Dortch had "grabbed" Mamie Butler, who at one time had been relator's "common-law" wife, and that the immediate cause of the fight was relator's desire to get a gold "wedding band" which Dortch was wearing and which relator had allegedly given to Mamie Butler. These facts might tend to show that the relator was in a heat of passion when he knifed the victim and therefore would be helpful in mitigating the degree of the offense or at least the term of the sentence.
Moreover, relator's testimony at the trial and the statement which he gave to the police relate essentially the same story, which version relator maintained to be true at the hearing before this Court. Compare N.T. p. 72 (the statement) with N.T. pp. 87-90 (relator's direct testimony). By not objecting to the introduction of the statement counsel was able to put on the record evidence which otherwise would have been inadmissible; i.e., a prior consistent statement. Furthermore, counsel's deliberate failure to object was emphasized by his cross-examination and his failure to make a motion to strike the statement. This Court is satisfied that the relator was familiar with the contents of the statement and that he acquiesced in Mr. Naythons' decision not to object to its admission. The above stated factors lead us to conclude that the failure to object was a "deliberate bypassing" of the state rule as a part of the trial strategy of relator and his counsel.
II. The guilty plea was not made knowingly, intelligently and voluntarily.
Relator's second ground of attack is that his guilty plea was not made knowingly, intelligently or voluntarily. It is clear that a guilty plea which was not made knowingly and understandingly will invalidate a conviction. Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962). The resolution of this issue calls for an analysis of all the relevant facts on a case by case basis. United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3rd Cir. 1968). In the Crosby case the Third Circuit found the following factors to be relevant: (1) the defendant's age and background; (2) the trial counsel's familiarity with the law; (3) the consistency, or lack thereof, in the pleas made throughout the pretrial and trial stages of the case; and (4) the defendant's opportunity to consult with his trial counsel. In the instant case relator was thirty-three years old at the time of the incident and had an eighth grade education which he received in the public schools of Alabama (N.T. p. 6). With this fact in mind this Court scrutinized carefully the other relevant facts. Relator's trial counsel consistently exhibited a thorough understanding of the law. Mr. Naythons repeatedly introduced evidence which was designed to negate a possible finding by the Court that the homicide was committed in the furtherance of a felony. Furthermore, he presented evidence of provocation and passion which, if believed, would be highly relevant in determining whether the crime was second degree murder or voluntary manslaughter. See N.T. pp. 99-102.
The relator originally entered a plea of not guilty, but shortly before trial changed his plea to guilty. The Court finds that in the instant case this fact does not demonstrate that relator did not make the plea knowingly and intelligently; but rather that he was so pleading on the advice of counsel. Relator testified at our hearing and at the postconviction hearing before Judge Reimel that he asked his counsel to withdraw his plea during the course of the trial (P.C.H. pp. 5-6-Reimel). Mr. Naythons could not recall whether the defendant showed any desire to change his plea but stated at the post-conviction hearing and at our hearing that if such were the case he certainly would have called it to the attention of Judge Ullman. Mr. Naythons testified at this Court's hearing that relator was never enthusiastic about pleading guilty but rather reluctantly agreed to so plead after counsel's advice. This was based on the fact that the prosecution had several eyewitnesses available and the very real possibility that the state would press for a conviction of first degree murder based on a felony murder theory. This Court is convinced that while the defendant might have been concerned about his plea, he did not ask counsel to change his plea during the trial. Furthermore, the change of plea from not guilty to guilty was not involuntarily made or forced upon relator. Judge Ullman, the trial judge, specifically inquired into this issue:
The Court: Now let me clarify one thing. You came in here originally with a plea of not guilty. Yesterday, after lunch, you changed your plea to guilty. Do I understand that you are acting on the advice of counsel? Were you acting on the advice of your attorneys?
Mr. Black: Yes, sir.