decided: April 20, 1972.
Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1960, No. 142, in case of Commonwealth of Pennsylvania v. Matthew Motley.
Jacob P. Hart, for appellant.
Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen dissents. Mr. Justice Nix joins in the majority opinion and files a concurring opinion, in which Mr. Justice Manderino joins. Mr. Justice Manderino joins in the majority opinion and joins in the concurring opinion of Mr. Justice Nix. Concurring Opinion by Mr. Justice Nix.
[ 448 Pa. Page 111]
Appellant Matthew Motley, after trial by jury in 1962, was convicted of murder in the first degree and sentenced to life imprisonment. No appeal was then taken from the judgment of sentence.
In 1967, appellant filed a petition pursuant to the Post Conviction Hearing Act,*fn1 alleging, inter alia, that he had been denied his right to appeal and to free counsel on appeal if he is indigent, guaranteed by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). His petition was dismissed by the common
[ 448 Pa. Page 112]
pleas court, and this Court affirmed the dismissal by a divided vote. Commonwealth v. Motley, 434 Pa. 272, 252 A.2d 366 (1969).
Thereafter appellant sought relief by way of federal habeas corpus. On September 25, 1969, the United States District Court for the Eastern District of Pennsylvania issued an order granting a writ of habeas corpus unless petitioner was permitted to file post-trial motions as if timely filed. Argument on appellant's motion for a new trial was held before three members of the Philadelphia Common Pleas Court, and his motion was denied. This appeal followed.
The sole issue presented by this appeal is precisely the same issue that was presented by Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972). In fact, reargument was ordered in this case in order that we might consider it together with Archambault.
At appellant's trial the court stated in its charge to the jury: "My comment is, members of the Jury, that it would be a miscarriage of justice, in my opinion, if you found this defendant not guilty." In Archambault we fully explored the issue of whether a trial judge may express his personal opinion on the guilt of the accused. We there held that: "[A] trial judge may not suggest a verdict of guilty or not guilty nor directly express an opinion on the guilt or innocence of the defendant." 448 Pa. at 97, 290 A.2d at 75. Accordingly, appellant is entitled to a new trial.*fn2
[ 448 Pa. Page 113]
The judgment of sentence is vacated and a new trial is granted.
Judgment of sentence vacated and new trial granted.
Concurring Opinion by Mr. Justice Nix:
[ 448 Pa. Page 114]
I concur in the result reached by the majority for the reasons stated in my concurring opinion in Commonwealth Page 114} v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972).