The opinion of the court was delivered by: MCCUNE
The petitioner, a prisoner at the State Correctional Institution at Pittsburgh, Pennsylvania, filed a petition for writ of Habeas Corpus in this Court on March 31, 1970. In his petition he related that he was convicted on nine counts of burglary and receiving stolen goods in 1947 in the Court of Common Pleas of Allegheny County (Numbers 6, 21, 22, 23, 24, 25, 28, 36, and 44, April Term, 1947). On May 15, 1947, he was sentenced to nine consecutive terms of 1 to 2 years. No appeal was taken from the convictions.
Petitioner alleges that his conviction in 1947 resulted from the introduction into evidence of a confession which he contends was not voluntary and in fact, was coerced. He also contends that he objected to the use of the confession but that it was introduced over his objection.
Relator first raised this issue in the Court of Common Pleas of Allegheny County at No. 2926, July Term, 1956, at which time the Honorable William H. McNaugher dismissed a petition for writ of habeas corpus.
Another petition was filed and a hearing was held at No. 2860 July Term, 1965, in the Court of Common Pleas of Allegheny County. President Judge Ellenbogen on March 17, 1967, in an Opinion stated that the matter would have been res adjudicata except for Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) which had meanwhile been decided. He apparently conducted a complete hearing where petitioner testified.
Relator then filed a petition with the Superior Court of Pennsylvania for leave to appeal that Order nunc pro tunc at No. 669 Miscellaneous Docket. This petition was denied per curiam August 24, 1967.
On September 1, 1967, relator filed a petition with the Supreme Court of Pennsylvania for leave to appeal from the Order of Judge Ellenbogen nunc pro tunc at No. 2948 Miscellaneous Docket. On December 13, 1967, Mr. Justice Jones granted this petition and remanded the matter to the trial Court for the purpose of conducting a hearing solely to determine whether counsel for the petitioner, contrary to petitioner's instructions, had failed to file a timely appeal from Judge Ellenbogen's Order of March 17, 1967. Pursuant to this Order, a further hearing was held on September 11, 1968. On October 8, 1968, Judge Ellenbogen found that appellant's counsel had failed to file an appeal from the dismissal of the petition for writ of habeas corpus.
On October 8, 1968, Mr. Chief Justice Bell granted the appellant's petition for leave to proceed on appeal nunc pro tunc provided the appeal was filed within a reasonable time of the date of his Order of October 8, 1968.
(Meanwhile an entirely separate petition for writ of habeas corpus was filed in the District Court for the Western District of Pennsylvania, alleging that the Order of the Supreme Court of December 13, 1967, had been improper. On June 18, 1968, Judge Marsh dismissed this petition.)
Accordingly, an appeal was filed with the Supreme Court on October 17, 1968, which was remitted to the Superior Court March 11, 1969. On June 5, 1969, in a per curiam Order, the Superior Court affirmed Judge Ellenbogen.
At this point Judge Ellenbogen had been affirmed in his refusal to grant the writ on the allegation of relator that a confession had been used in the trial in 1947 which was involuntary.
Meanwhile, events transpired which added many years to the sentences which relator was serving as the result of his 1947 convictions for burglary. As will be observed later on, the additional sentences and a Pennsylvania Supreme Court decision in 1968 no doubt motivated relator to raise the question again which had apparently been settled finally on June 5, 1969.
As has already been observed the sentences of May 15, 1947, in Allegheny County would have extended to at least March 15, 1956, if the minimum had prevailed and to March ...