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COMMONWEALTH v. BOWER (03/18/71)

decided: March 18, 1971.

COMMONWEALTH
v.
BOWER, APPELLANT



Appeal from judgment of Court of Common Pleas of the 17th Judicial District, Union County Branch, May T., 1959, No. 2, in case of Commonwealth of Pennsylvania v. John Jacob Bower.

COUNSEL

James F. McClure, Jr., with him McClure & McClure, for appellant.

John R. Moore, Assistant District Attorney, for Commonwealth, appellee.

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

Author: Eagen

[ 442 Pa. Page 380]

On May 29, 1959, John Jacob Bower was convicted by a jury in Union County of murder in the first degree, and punishment was fixed at life imprisonment. No post-trial motions were then filed, and on June 5, 1959, Bower was sentenced in accordance with the jury's verdict. No appeal from the judgment was then entered.

In 1968 following a hearing on a petition for habeas corpus,*fn1 the trial court concluded that Bower had not intelligently or understandingly waived his right to appeal from the 1959 judgment, and entered an order permitting him to file post-trial motions as if timely filed. Such motions were filed and subsequently dismissed.

[ 442 Pa. Page 381]

This direct appeal from the 1959 judgment then followed.

Bower's trial preceded the effective date of the Split-Verdict Act, Act of December 1, 1959, P. L. 1621, § 1, 18 P.S. 4701. At trial, in accordance with the "Parker Rule" then recognized in Pennsylvania, the Commonwealth introduced into evidence as part of its case in chief the records of eleven prior criminal convictions of Bower,*fn2 for the purpose of assisting the jury in fixing the penalty in the event it determined that Bower was guilty of first degree murder. These records were again introduced in rebuttal by the Commonwealth for the purpose of impeaching the credibility of Bower's trial testimony. While an objection was entered when these records were introduced in rebuttal, no objection was voiced when they were introduced during the Commonwealth's case in chief.

The prior convictions involved were totally unrelated to the offense for which Bower was then on trial, and resulted from pleas of guilty by Bower to criminal indictments in Northumberland, Lycoming, Clinton and Centre Counties, Pennsylvania. At the habeas corpus hearing in the court below, Bower testified, without contradiction, that when he plead guilty to the criminal indictments in Lycoming, Clinton and Center Counties, he did not have legal counsel.*fn3 Moreover, the official court records of the proceedings in Lycoming, Clinton and Centre Counties fail to show that Bower was represented by counsel when the guilty pleas were entered; and these records do not show that he waived this constitutional right. Additionally, the District Attorney of Union County, despite assiduous

[ 442 Pa. Page 382]

    effort, has been unable to produce an iota of evidence to show that Bower was represented by counsel on the occasions that ...


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