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COMMONWEALTH v. MITCHELL (01/07/71)

decided: January 7, 1971.

COMMONWEALTH
v.
MITCHELL, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1962, No. 79, in case of Commonwealth of Pennsylvania v. Clarence Mitchell.

COUNSEL

John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.

Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the decision of this case.

Author: O'brien

[ 441 Pa. Page 227]

On January 28, 1963, appellant entered a plea of guilty generally to murder. He was found guilty of murder in the first degree and a sentence of life imprisonment was imposed. No direct appeal from the judgment of sentence was taken.

Thereafter appellant filed a petition for writ of habeas corpus which was dismissed. On appeal this court affirmed the dismissal. Com. ex rel. Mitchell v. Rundle, 416 Pa. 296, 204 A.2d 923 (1965).

In November of 1966 appellant filed a petition under the Post Conviction Hearing Act, which petition was dismissed by the court below without a hearing. He then applied to this court for the allowance of an appeal and we remanded the matter to the court below for the appointment of counsel. It was subsequently determined by the court below that the matters raised

[ 441 Pa. Page 228]

    by appellant in his post-conviction petition entitled him to an evidentiary hearing and such a hearing was held.

In his Post Conviction Hearing Act petition appellant contended that the confession which he had given the police had been coerced and that he did not intelligently and knowingly waive his right to trial by jury and enter a guilty plea. Both of these contentions were decided adversely to him by the court below and this appeal followed.

The evidence presented at the post-conviction hearing clearly supports the factual conclusions reached by the court below. The testimony discloses no coercion. In that connection, when we considered the habeas corpus case in 1965, we said in footnote 4 of Com. ex rel. Mitchell v. Rundle, supra, at page 300: ". . . While not directly raised by the petition or passed upon by the court below, petitioner's statement of the facts in his brief in this Court contains an allegation that his confession was coerced out of fear of being sent to the electric chair. For the sake of completeness, it should be noted that the written confessions contained statements substantially identical with those made orally by the defendant on the stand during the hearing following the plea. Compare United States ex rel. Reid v. Richmond, 295 F. 2d 83, 89 (2d Cir.), cert. denied, 368 U.S. 948, 82 S. Ct. 390 (1961). Furthermore, no objection was made to the introduction of the confessions."

Appellant's second complaint is actually twofold. He not only argues that he did not intelligently waive his right to jury trial and knowingly enter a plea of guilty, but also that his plea was primarily motivated by the existence of the confession. He submits that he would not have taken the stand and ...


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