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December 31, 1969

UNITED STATES of America ex rel. Jesse YOUNG

The opinion of the court was delivered by: HIGGINBOTHAM

Relator, presently incarcerated in the State Correctional Institution, Pittsburgh, Pennsylvania, has filed a petition for a writ of habeas corpus attacking the lawfulness of his continued detention by the Commonwealth of Pennsylvania.

On September 20, 1950, relator and a co-defendant, John L. Collins, *fn1" were sentenced to terms of life imprisonment after guilty pleas to a murder indictment. *fn2" Relator alleges that his plea of guilty is void because it was induced by an involuntary confession.

 The factual background involving the indicted crime of homicide in the perpetration of the robbery of a Philadelphia taproom on January 16, 1950, is narrated in my opinion in United States ex rel. Collins v. Maroney, *fn3" 287 F.Supp. 420 (E.D.Pa.1968).

 Upon appeal of a denial of relief in a Post-Conviction proceedings in the State Courts, the Supreme Court of Pennsylvania held that the relator's confessions were indeed coerced, but that the unconstitutional confession might not have induced the guilty plea. Commonwealth v. Young, 433 Pa. 146, 249 A.2d 559 (1969). It has in fact been stipulated by counsel for both sides that relator's confession was indeed involuntary. (N.T., 3-4). Thus as a matter of law relator's federal constitutional rights were breached in the taking of the confession, and, absent waiver, the confession would have been inadmissible in a jury trial where the defendant had plead not guilty. The sole issue before this Court is whether the relator's unconstitutional confession rendered the subsequent guilty plea involuntary and thus void.

 The circumstances surrounding relator's confession and plea are similar to those of his co-defendant, Collins, where I held the plea void and ordered Collins released. But in the relator's case, the Commonwealth argues for continued custody by highlighting a supposedly significant difference between relator's and his co-defendant's case. In its brief and at the hearing before this Court, the Commonwealth urged that the strong eyewitness testimony in relator's case distinguished it from Collins, supra. Further, the Commonwealth argued that the fact of positive identification induced the plea of guilty. The Commonwealth's position is augmented somewhat by the unwillingness of the Supreme Court of Pennsylvania to overrule the Post-Conviction hearing Judge's finding that the plea was voluntary; the State's highest tribunal, relying on my opinion in Collins, supra, was willing, however, to overrule the hearing judge's factual determination on the voluntariness of relator's confession.

 At the hearing before me, the relator was the only witness to testify since his two court appointed attorneys are now deceased. The testimony at the relator's Post-Conviction Hearing Act hearing as well as the notes of testimony at the original trial to determine the degree of guilt *fn4" were made part of the record.

 After holding a plenary hearing and reviewing carefully the briefs submitted by both sides, and a supplemental brief submitted by counsel for the relator, for the reasons stated hereafter, I have decided that a writ should be granted because relator's guilty plea was in fact tainted by his admitted constitutionally infirm confession, and thus void.

 The first step of inquiry is to ascertain upon whom the burden of proof rests in this collateral attack on the guilty plea. Relator's plea was entered in 1950, and thus at a time prior to the more recent Supreme Court opinions which have articulated more precise standards of inquiry for a trial judge in accepting a guilty plea. Cf. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); See, also, Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1967). As to the latter doctrines articulating a trial judge's obligation to conduct an inquiry of a defendant, the instant case is a 'silent record'. For the relator was only asked as to the various bills of indictment to which he had plead not guilty whether he wished to withdraw his pleas. The relator responded that he did want to withdraw his plea and then responded 'guilty' to the question of 'how do you plead?'. (See, Exhibit 1, the Notes of Testimony of the Arraignment, pp. 1-4, following the Notes of Testimony at the trial to determine the degree of guilt). Since the voluntariness of a plea of guilty is a matter of federal constitutional law, a federal standard is applicable. United States ex rel. Smith v. Hendrick, 260 F.Supp. 235 (E.D.Pa., 1966) aff'd. per curiam, 378 F.2d 373 (3d Cir., 1967). Our Court of Appeals has recently reiterated, in unequivocal language, that it is the Commonwealth's burden to prove the validity of a guilty plea where there is not on the record inquiry that affirmatively shows that the defendant made a knowing and intelligent plea of guilty. United States ex rel. Fink v. Rundle, 414 F.2d 542 (3d Cir., 1969). Accord: United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir., 1968); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. (1968).

 As the Pennsylvania Supreme Court viewed the testimony at relator's Post-Conviction hearing, it was sufficient to uphold the plea of guilty that:

 'This is a case where even without the confession, the Commonwealth still had strong evidence, most importantly an eye witness. Thus appellant well might have entered a guilty plea in order to reduce his changes of getting the death penalty after a conviction that may have appeared inevitable even if the confession was suppressed.' Commonwealth v. Young, 433 Pa. 146, 249 A.2d 559, 561 (1969). (Emphasis added.)

 Relator testified on direct examination that he was not aware that he had been positively identified in a police lineup. (N.T., 7-8). In opposition, upon cross-examination, and through citations to various parts of the record, the Commonwealth attempted to demonstrate that objectively the state had eyewitness testimony *fn5" sufficient to convict relator of first degree murder. In cross-examination of the relator, the Assistant District Attorney, at best elicited inconclusive testimony of the motivational force of identification in the relator's decision.


 'Q. And you never overheard any voice identifying you ...

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