'THE WITNESS: Yes, sir. At that time I didn't -- I don't think I thought about the eye witness.' (N.T., 35) (Emphasis added.)
In his plea for leniency in sentencing at the original trial, court appointed counsel, corroborates the relator's assertion of the determinative nature of the unconstitutional confession in the guilty plea:
'When I first went down to talk to him, he was not going to plead guilty, but when I talked to him later on, he frankly and candidly admitted everything he had stated to the police.' (Exhibit 1 at 124.)
The Assistant District Attorney in his statement at sentencing on September 20, 1950, made a statement even more corroborative of relator's testimony that his illegal confession induced his plea:
'But in view of all the facts of the case, the fact that if it had not been for these two men having made confessions -- and Sergeant McDermott will tell you that one of these men stepped forward and he said, 'I am going to tell you the truth, I don't give a damn what the others do,' and he told the truth -- I say if it had not been for that, it might have been difficult to connect all of them with the holdup by reason of the failure of the witness Riggs, who first stated positively that he saw Smith strike Hill and then later recanted down in the District Attorney's office, and if it had not been for the confessions of these two men in the manner in which they did confess, especially as to the statements given to Sergeant McDermott, their own written statements -- ' (Exhibit 1 at 131) (Emphasis added.)
Under the 'totality of circumstances,' the Commonwealth has failed to prove, as it is required to do, that relator's guilty plea was voluntary. United States ex rel. Crosby v. Brierley, supra. When I view, from a chronological distance of nearly twenty years, the fact of two unconstitutional confessions and the relator's testimony before me of the irrelevancy of any identification evidence to his decision to plead guilty, I find that the Commonwealth has failed to prove that relator's plea was not induced by the unconstitutional confession.
Relator had also never been arrested before. (Exhibit 1 at 108). He may have known he was guilty of robbery or other crimes, but, 'I cannot say with any assurance that under those circumstances the relator would have entered a guilty plea' to murder. United States ex rel. Cuevas v. Rundle, 256 F.Supp. 647, 656 (E.D.Pa., 1966).
The death of both attorneys for the relator, the absence of the transcript from the preliminary hearing, and the fact that the Commonwealth had the burden of proof in this case, enforces the relevance of Justice Douglas' comment:
'What is at stake for the accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought. * * *, [citations omitted], and forestalls the spin-off of collateral proceedings that seek to probe murky memories.' Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 1711-1712 (1969).
And now, this 31st day of December, 1969, it is hereby ordered that the judgment of conviction of September 20, 1950, is set aside; the petition for a writ of habeas corpus is granted.
It is further ordered that execution of the writ will be stayed for a period of forty-five (45) days from the date of this order within which time the Commonwealth of Pennsylvania may either file an appeal from this order or proceed with the rearraignment of relator, failing in which the writ shall issue as a matter of course.