The opinion of the court was delivered by: HIGGINBOTHAM
On successive fall days, October 10th and 11th, 1967, relator Walter Burgess was found guilty by two juries of Burglary, Robbery, and Robbery-related offenses as charged in bills of indictment Nos. 1004, 1005 (No. 131 June Term 1967), 1209, and 1211 (No. 185 June Term 1967). On December 29, 1967, Judge Robert Honeyman sentenced relator to concurrent two to ten year sentences and ordered him to make restitution to two robbery victims.
In the case of the conviction on bills of indictment Nos. 1004 and 1005 appeals were taken to the Court of Quarter Sessions, the Pennsylvania Superior Court, and the Pennsylvania Supreme Court. In the case of the conviction on bills of indictment Nos. 1209 and 1211 appeals were set in motion, but were withdrawn as a result of the following hand-written letter from relator to his counsel, Herbert C. Nelson, which was filed in open court before Judge Honeyman on December 18, 1967:
"You represented me in the case in which the Commonwealth charged me with Burglary, Robbery Conspiracy, and violation of firearm act, No. 185 June Term 1967 (Abington case) [indictments No. 1209 and 1211].
"This was tried by a jury and Judge Honeyman on October 9 and 10, 1967.
"The jury found me guilty. My attorney advised the court that he would file motions for appeal.
" I now advise my Lawyer that I do not care to appeal this case. I am satisfied with the manner in which the case was tried and with the jury's verdict. [emphasis added].
"I do not want my attorney to proceed with motions for a new trial.
"I am requesting my attorney to ask Judge Honeyman to set a time for sentence in this case, and withdraw my motion for a new trial.
Incorporating this letter into the record, Judge Honeyman ordered relator to be produced for sentencing on December 29, 1967.
Contrary to relator's assertion in his petition for writ of habeas corpus that he has filed no state court post-conviction petitions, he has filed numerous such petitions and Judge Honeyman has issued two opinions and several orders in response.
Relator here attacks his convictions alleging that as to indictments 1004 and 1005 his "identification took place without counsel being present, and relator was the only one in the lineup to choose from." As to indictments 1209 and 1211, relator alleges denial of due process of law because "the only evidence the Commonwealth has connecting relator with the commission of the offense is entirely after the fact." Relator's third point of attack on his convictions is best reproduced in his own words: "a plea of guilty or an admission after the verdict and before sentence, based upon trial counsel's statement to do otherwise, meant an extremely lengthy sentence, is not to be considered as voluntary, since such a plea or admission is based solely upon fear."
I shall deal with relator's three points seriatim.
First relator raises the problem which was before the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. State of California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). These two landmark cases teach us that when lineups or other pretrial identifications of a suspect are conducted in the absence of counsel for the suspect, later in-court identifications cannot be admitted "without first determining that they were not tainted by the illegal lineup but were of independent origin." Gilbert v. State of California, supra, 87 S. Ct. at p. 1956; and see United States v. Wade, supra, 87 S. Ct. at pp. 1939, 1940.
The following testimony is illuminating:
"Q: Did you ever see Walter Burgess [relator] before the day you were robbed?
"A: Oh, yes, he's a customer of mine.
"Q: Did he buy anything from you?
"A: Well, a week prior to that, [the robbery], on the 5th, he came in there and he purchased eighty-five dollars' ...